State v. Hanger

OPINION

LIVERMORE, Judge.

Stripped of the rhetoric and invective with which the appellate briefs are filled, the narrow issue in this case is whether the trial judge abused his discretion by dismissing criminal charges with prejudice when, during jury selection of what was anticipated to be a three- to four-month trial, Cochise County announced that it did not intend to pay any furhter defense costs and fees as due or for the foreseeable future.

The state does not contest the power of the trial judge to dismiss. State v. Fendler, 127 Ariz. 458, 622 P.2d 17 (App.1980); State v. Hannah, 118 Ariz. 610, 578 P.2d 1039 (App.1978). Its argument, rather, is that such power cannot be exercised for the reasons stated in this case. First, it suggests that the lawyers should have been ordered to serve without compensation. Second, it argues that under Rule 6.7, Rules of Criminal Procedure, 17 A.R.S., lawyers are not entitled to compensation until the case is completed and that, therefore, dismissal for failure to make periodic payments is prohibited. Finally, it is contended that the trial court abused its discretion by not ordering Cochise County to pay rather than dismissing the prosecutions.

We begin with that which is incontestable; Cochise County was obligated by A.R.S. §§ 13-4011, 13-4013 to pay the costs and fees of the defense. Its refusal to perform that obligation presented the trial judge with a difficult problem. While he had the power to order payment, Alexander v. Deddens, 106 Ariz. 172, 472 P.2d 41 (1970), the position of the county was that it had no money with which to fulfill its statutory obligation and at the same time meet other pressing county needs. Given that position, it was not unfair for the trial judge to assume that a judicial order would be no more availing than a statutory mandate. Neither was it unfair for him to avoid mediating among various calls on the county purse. To forego one possible remedy in these circumstances is not an abuse of discretion. We decline to mandate confrontations between the court and other governmental agencies. Similarly, assuming that a trial judge could order lawyers to serve without compensation, it is not an abuse of discretion not to enter such an order where the statutes plainly provide for payment. Finally, while Rule 6.7 contemplates in the ordinary criminal case that payment will be made after the trial is over, it does not forbid a judicial order for periodic payments when the magnitude of the case so dictates. In any event, the County had anticipatorily repudiated its obligation to pay when the trial was over.

While the technical arguments advanced by the state are not persuasive, we must respond to the intimation that the trial judge thwarted the public’s interest in resolution of the charges against the defendants. It was not the judge that thwarted resolution of the case. Rather, it was the state. The state is constitutionally obligated to fund defense services. It has chosen to fulfill that obligation by imposing it on counties within the state. Such devolution does not, however, end responsibility. The state cannot disclaim its constitutional obligation. That stricture applies with particular force on the facts of this case where the state legislature voted against a special appropriation to cover defense fees and costs.

Having determined that dismissal was not forbidden, we must assess whether the trial judge abused his discretion in finding that the interests of justice required that such dismissal be with prejudice. The state emphasizes in its argument that at the time of dismissal the defendants could establish no prejudice, and that in the absence of such prejudice, State v. Hannah, supra, requires that the dismissal be without prejudice. Ordinarily, we would agree. In this case, however, the trial judge could foresee with certainty a violation of the speedy trial requirements of Rule 8, Rules of Criminal Procedure, 17 A.R.S. Had he continued the case, rather than dismissed it, the time limits of that rule would have passed long before Cochise County was prepared to provide defense services. In these circumstances, where the state or its agencies have failed to fulfill statutory and constitutional obligations, a dismissal under Rule 8 would be with prejudice. State v. Tucker, 133 Ariz. 304, 651 P.2d 359 (1982). Given the contumacy of Cochise County, as the state’s agent, to provide counsel to the defendants, and the resultant certainty of a Rule 8 violation, the trial judge could, in the exercise of his discretion, find that “the interests of justice” required that the dismissal be with prejudice under Rule 16.5, Rules of Criminal Procedure, 17 A.R.S.

We regret the result in this case. We recognize that extraordinarily complicated cases, such as this one, can severely strain resources in rural counties. We can understand, if not approve, Cochise County’s decision that other county needs had to take precedence over the provision of defense services in this case. We also understand the trial judge’s decision to defer to the judgment of the county on the utilization of county resources. The state can avoid the result in this case in future cases by utilizing state funds to pay defense costs or by providing a state public defender to handle those cases beyond the means of rural counties to fund.

The order appealed from is affirmed.

LACAGNINA, J., concurs.