Criminal Law:

Bethany M. Whitmarsh, LeClairRyan Providence, R.I.
Experienced litigator represented clients in a wide range of financial service and real estate litigation.

Rockingham, No. 2017-0403, September 18, 2018

Reversed and remanded.

  • Whether RSA 604-A:2-f providing for recoupment for State costs in defending indigent defendants applies to acquitted defendants.

Defendant was charged with two criminal offenses in the Circuit Court that were transferred to the Superior Court for a jury trial where the court appointed a public defender to represent Defendant due to his indigence. At the time of the appointment, the trial court ordered Defendant to reimburse the New Hampshire Division of Administrative Services, Office of Cost Containment (OCC) for costs and expenses associated with his defense and directed Defendant to contact the OCC within five days of the court’s order. Defendant was acquitted of both charges following the jury trial.

The OCC attempted to contact Defendant for reimbursement of costs as ordered without success. Subsequently, the OCC filed a motion alleging that Defendant failed to comply with his payment obligations and failed to provide any cause for his noncompliance. The trial court scheduled a show-cause hearing at which Defendant failed to appear. The trial court issued an arrest warrant and set bail at $50. Defendant was arrested and paid the $50 bail as a condition of his release. The OCC requested a further show cause hearing alleging that other than the $50 bail payment, which had been remitted to the OCC, no payment had been made. The trial court scheduled a second show-cause hearing at which Defendant again failed to appear. The OCC requested an arrest warrant with bail to be set at the full amount of the costs being sought to be reimbursed.

The trial court denied the OCC’s second motion concluding that it no longer had jurisdiction because Defendant had been acquitted. The trial court further noted that the controversy was a civil one between creditor and debtor. The State appealed.

In reversing the trial court’s decision, the court recognized that the State is constitutionally and statutorily obligated to provide court-appointed legal representation in cases such as Defendant’s, but cited its prior ruling that repayment obligations are not extinguished by the dismissal of a defendant’s charges and that the State’s interest in recouping costs is constitutional. The court relied on the express language in the subject statute as supporting its purpose of having those defendants receiving services from the State be responsible for reimbursing the State if they are financially able to do so. The language and purpose applies regardless of the nature of the disposition, and thus includes cases in which there is an acquittal.


Gordon J. MacDonald, attorney general, and John J. Conforti, assistant attorney general, and Laura E.B. Lombardi, senior assistant attorney general, for the State; John T. Brawley, self-represented, Gilles R. Bissonnette, American Civil Liberties Union of New Hampshire, Concord, Elliot Berry, New Hampshire Legal Assistance, Manchester, and Albert E. Scherr, Concord, as amici curiae.