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State v. Berge

Court of Appeals of Iowa

October 24, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
BEAU TREMAINE BERGE, Defendant-Appellant.

          Appeal from the Iowa District Court for Dickinson County, David C. Larson, District Associate Judge.

         The defendant challenges the order requiring him to pay costs associated with dismissed charges.

          Pamela A. Wingert of Wingert Law Office, Spirit Lake, for appellant.

          Thomas J. Miller, Attorney General, and Kevin Cmelik, Israel J. Kodiaga, and Kelli A. Huser (until withdrawal), Assistant Attorneys General, for appellee.

          Considered by Vaitheswaran, P.J., Doyle, J., and Blane, S.J. [*]

          BLANE, SENIOR JUDGE.

         Nine years after the district court erroneously assessed Beau Tremaine Berge (Berge) court costs in dismissed criminal cases, he challenged the assessment of those costs, which the district court denied. On this discretionary review, because of legal precedent, Berge's own failure to timely challenge the assessments, and his later agreement in a contempt proceeding to pay the costs, we find the district court properly denied Berge's challenge and affirm.

         I. Factual and procedural background.

         In July 2007, Berge was charged with one felony drug count in Dickinson County case No. FECR016893, as well as two related charges in case Nos. SM065539 and SM062381. Berge retained private counsel and filed a motion to suppress. Following a hearing, on May 12, 2008, the court granted Berge's motion to suppress. Due to the grant of the suppression motion, on July 7, the State filed a motion to dismiss FECR016893. On that same date the court entered an order granting the motion and dismissing that case, but taxing court costs to Berge in the amount of $100.[1] Similarly, on August 14, 2008, the State filed a motion to dismiss the two accompanying misdemeanor charges (Nos. SM065539 and SM062381), and the court entered an order on that same day dismissing those criminal charges, but again taxing court costs to Berge.[2] Berge did not consent to the taxing of any of the costs in these dismissed cases. Berge did not file an appeal or seek a hearing challenging the taxing of court costs in any of these dismissed cases.

         Two years later, on July 9, 2010, the State filed an application against Berge for contempt for failure to pay, listing case Nos. FECR016893, NT006855, SMSM062381, and SMSM065539. The application contained no itemization by case of the total amount claimed of $1466.02. On August 12, at the time scheduled for hearing on the contempt application, Berge admitted he was in contempt of court as alleged in the State's application and did not challenge the amount of the fines and court costs he had been ordered to pay. Based on Berge's admissions, the court found him in contempt of court for failure to pay, [3] sentenced him to seven days in jail, and withheld mittimus conditioned on Berge making monthly payments of $50.00 to the clerk of court. Berge's signature appears on the bottom of the ruling regarding contempt of court, agreeing to the ruling in form and substance. Berge did not appeal this order.

         On June 8, 2011, the State requested a mittimus hearing to determine whether Berge should be required to serve the seven days in jail for the contempt based upon his failure to make the monthly payments as agreed. The mittimus hearing was scheduled for July 7. When Berge failed to appear for the hearing, a bench warrant was issued for his arrest. Almost four years later, on May 7, 2015, after the State learned that Berge was incarcerated in federal prison, the State filed a motion to dismiss the mittimus proceeding. The court granted the motion, canceled the mittimus hearing, and recalled the arrest warrant previously issued, but it again assessed court costs to Berge. Berge did not appeal or challenge the costs assessed in this order.

         Almost two years later, on February 9, 2017, after receiving letters from the Dickinson County Attorney's office attempting collection, Berge wrote a letter to the court questioning why he was being required to pay so much. On April 20, the court held a hearing on Berge's complaint about court costs. At the hearing, Berge testified and the parties agreed that the court would take judicial notice of all of the court files involved in the court cost issue. On June 30, the district court filed its order denying Berge's challenge to the court costs he had been ordered to pay.[4]On July 10, Berge filed a notice of appeal. By order, the supreme court deemed the notice of appeal to be an application for discretionary review, which it granted on September 25, 2017. The supreme court then transferred the case to us.

         II. Discussion.

         A. Whether the district court erred in denying Berge's challenge to the imposition of court costs against him when those charges were dismissed.

         Berge's specific challenge is to the costs taxed to him in the criminal cases that were dismissed.[5] "To the extent we are required to engage in statutory construction, our review is for correction of errors at law." State v. Dudley, 766 N.W.2d 606, 612 (Iowa 2009) (citing State v. Sluyter,763 N.W.2d 575, 579 (Iowa 2009)). Under Iowa statutes and as discussed in case ...


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