Summary
In State v. Friend, 59 Wn. App. 365, 367, 797 P.2d 539 (1990), the court said, "By definition, deferred prosecution defendants have not even been prosecuted, much less convicted".
Summary of this case from State v. HigleyOpinion
Nos. 13588-4-II; 13589-2-II.
September 27, 1990.
[1] Statutes — Construction — Exclusion and Inclusion — In General. The Legislature's express inclusion of certain conditions in a statute precludes a court from implying other conditions.
Criminal Law — Deferred Prosecution — Conditions — Costs.
[3] Statutes — Construction — Unambiguous Language — In General. Unambiguous statutory language is not subject to judicial construction.
[4] Statutes — Meaning of Words — Ordinary Meaning — Resort to Dictionary. Undefined statutory terms will be given their ordinary dictionary meanings.
Nature of Action: Prosecutions for driving while intoxicated. Both defendants petitioned for deferred prosecution.
District Court: Pierce County District Court No. 1 in cause No. 88-444025-1, Ron Culpepper, J. Pro Tem., on June 22, 1989, and in cause No. 86-430726-0, Thomas P. Larkin, J., on June 19, 1989, granted the petitions.
Superior Court: The Superior Court for Pierce County, in Nos. 89-1-02066-3 and 89-1-02147-3, Nile E. Aubrey, J., on January 16, 1990, reversed the imposition of costs as a condition of deferred prosecution.
Court of Appeals: Holding that there was no authority for the imposition of costs, the court affirms the Superior Court decision.
John W. Ladenburg, Prosecuting Attorney, and Kyron J. Huigens, Deputy, for petitioner. John S. Abolofia and Abolofia Hershman, for respondents.
We are asked to decide whether the district court may impose costs on a criminal defendant who successfully petitions for deferred prosecution under RCW 10.05. Plainly it may not.
Jeannie Friend and Larry Harris were charged separately with driving while under the influence of intoxicating liquor (RCW 46.61.502). Each sought deferred prosecution under RCW 10.05.010 in district court, and the petition of each was granted. Friend thereupon was assessed costs of $150, and Harris $400. The Superior Court reversed, holding that the district court has no authority to impose such costs. We accepted discretionary review because of the significance of the issue. RAP 2.3(d). We affirm the Superior Court.
RCW 10.05.010 provides in part: "In a court of limited jurisdiction a person charged with a misdemeanor or gross misdemeanor may petition the court to be considered for a deferred prosecution program. . . ."
The nature of these "costs" was never clearly defined for us, nor was the reason for the discrepancy in their amounts explained.
[1, 2] Deferred prosecution status is authorized by statute, and the district court's authority to impose conditions on deferred prosecution must be authorized by statute. State v. Wright, 54 Wn. App. 638, 640-41, 774 P.2d 1265 (1989). Nothing in the deferred prosecution statute itself authorizes the imposition of such costs. See generally RCW 10.05. RCW 10.05.140 lists various conditions that may be imposed on deferred prosecution defendants. Costs are not among them. RCW 10.05.170 permits the court to order supervision of a petitioner during the period of deferral; costs are not mentioned. This express inclusion of certain conditions by the Legislature excludes the implication of others not included. State v. Wright, 54 Wn. App. at 642; Norris v. State, 46 Wn. App. 822, 825, 733 P.2d 231 (1987).
The general statute allowing the district court to impose costs (RCW 10.01.160) refers only to convicted defendants. By definition, deferred prosecution defendants have not even been prosecuted, much less convicted.
RCW 10.01.160, part of the general provisions of criminal procedure, states in part: "(1) The court may require a convicted defendant to pay costs.
"(2) Costs shall be limited to expenses specially incurred by the state in prosecuting the defendant. They cannot include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law. Expenses incurred for serving of warrants for failure to appear and jury fees under RCW 10.46.190 may be included in costs the court may require a convicted defendant to pay."
[3, 4] The State mounts several arguments that all lead to the same conclusion: we should ignore the plain language of the statutes. The suggestion is either naive or disingenuous. We are a court, not a legislature. We will not construe, much less rewrite, unambiguous statutes such as RCW 10.01.160. Northwest Steel Rolling Mills, Inc. v. Department of Rev., 40 Wn. App. 237, 240, 698 P.2d 100, review denied, 104 Wn.2d 1006 (1985); Longview Fibre Co. v. Cowlitz Cy., 55 Wn. App. 309, 311, 777 P.2d 556 (1989), aff'd, 114 Wn.2d 691 (1990). We will give undefined statutory terms ( e.g., "convicted") their ordinary dictionary meaning. Northwest Steel Rolling Mills, 40 Wn. App. at 240. We will not fill in this gap, if indeed it is a gap, or any gap left by the Legislature. Jenkins v. Bellingham Mun. Court, 95 Wn.2d 574, 579, 627 P.2d 1316 (1981).
Affirmed.
ALEXANDER, C.J., and PETRICH, J., concur.