People v. Sean R.

Opinion

RACANELLI, P. J. In this appeal, the sole question presented is whether the trial court had authority to order defense counsel to pay the prosecution’s witness fees and expenses incurred upon a continuance granted to the defense. For the reasons we explain, we will conclude the order was unauthorized and void.

Background

This appeal arises against the following procedural background: In January 1988, a petition was filed in the juvenile court charging the fourteen-year-old minor defendant with the commission of three criminal offenses involving an alleged sexual molestation of a five-month-old infant. The minor was represented by the public defender. After three continuances, the matter was set for a jurisdictional hearing on April 18, 1988. On that day, defense counsel requested a further continuance on the ground that he was unprepared. The prosecution objected, noting that the examining physician had been subpoenaed “at considerable inconvenience.”

[664]The trial court granted the request for continuance but also ordered the public defender’s office to pay the expert witness fees for the physician upon his return to court. The court added that “if there is [s/c] any additional charges, the public defender’s office will pick it up.”

The prosecutor noted that the victim’s parents were about to move to Wisconsin. The court therefore ordered the public defender’s office to pay the transportation costs for returning the witnesses for trial.

The deputy public defender at that hearing, Otto Pisani, was thereafter assigned to other matters, and the case was taken over by Deputy Public Defender Nancy Dillon, who successfully moved for another continuance because she would be unavailable on the scheduled date. Thereafter, the matter was continued four more times.

At the conclusion of the jurisdictional hearing on August 22, 1988, the trial court found the evidence insufficient to sustain the petition. The trial court thereupon entered an order directing the public defender’s office to pay the witness fees of Dr. Johnson and the travel expenses for Cindy D., the victim’s mother.1

The public defender moved for reconsideration, but the trial court reaffirmed its order. The public defender now appeals from that order directing payment of witness fees and costs.2