 

Su the Missouri Court of Appeals
Castern District

DIVISION THREE
STATE OF MISSOURI, ) No. ED107198
)
Respondent, ) Appeal from the Circuit Court of
) Montgomery County
vs. } 14BB-CR00161-02
)
DOUGLAS JAMES BOSTON, ) Honorable Wesley C. Dalton
| )
Appellant. ) Filed: April 23, 2019

OPINION

Douglas Boston appeals the order of the Circuit Court of Montgomery County denying his
motion to retax costs assessed against him in the underlying criminal case that resulted in his guilty
plea. Because we find that Montgomery County had no authority to assess costs in this case, we
reverse and remand with directions.
[ Background

Boston was charged in the Circuit Court of Warren County with child molestation and
sexual misconduct in April 2014. Pursuant to Rule 32.03,' Boston was granted a change of venue
as a matter of right from Warren County to neighboring Montgomery County. In January 2015,
following his guilty plea to the child molestation charge, Boston was sentenced to fourteen years

in prison in the custody of the Missouri Department of Corrections (DOC). In its judgment, the

 

! All rules references are to the Missouri Supreme Court Rules 2018).

 
court ordered costs taxed against Boston. Soon after his guilty plea, Boston was transferred from
the Warren County jail—where he had been held while the charges were pending---to the DOC.

Though the prosecution was carried out in Montgomery County following the change of
venue, Boston was never held in the Montgomery County jail. Nevertheless, Montgomery County
sent a bill of costs to the State for $5,807.46, most of which were Boston’s boarding costs in the
Warren County jail. Then, in July 2018, Boston received a costs bill of $18,493.73 from a debt
collection agency retained by Montgomery County to collect costs it claimed Boston owed.

Boston filed a motion to retax costs seeking the trial court’s ruling that he owes no costs.
Following a hearing, the court denied Boston’s motion. The present appeal follows.
iT Standard of Review

Because Boston’s first point raises a question of statutory construction and is therefore an
issue of law, our review is de nove. Investors Alliance, LLC v. Bordeaux, 428 S.W.3d 693, 695
(Mo.App.E.D. 2014).

HE Discussion: Montgomery County had no statutory authority to tax costs in this case.

At common law, costs were not recoverable in criminal proceedings. State v. D. S., 606
S.W.2d 653, 654 (Mo.banc 1980); City of Greenfield v. Farmer, 190 S.W. 406, 407 (Mo.App.
1916). The recovery of costs in criminal cases is permitted only pursuant to express statutory
authority which we strictly construe. State v. Anderson, 758 S.W.2d 500, 502 (Mo.App. W.D.
1988). No item is taxable as a cost unless it is specifically authorized by statute. Stare v. D. S.,
606 S.W.2d 653, 654 (Mo.bane 1980). Additionally, the term “costs” generally refers to those
items connected with the actual presentation of testimony and the fees of specified officers, and

courts are reluctant to expand the meaning of the term, Anderson, 758 $.W.2d at 502.

 
The foregoing principles were recently employed by our Supreme Court in State v. Richey,
SC 97604, 2019 WL 12470839, at *3 (Mo.banc Mar. 19, 2019), where the Court held that jail board
bills are not court costs and may not be taxed as such because the legislature did not expressly
make them so, Id.

Our analysis here is controlled by two statutory sections, §§ 550.120 and 550.130, which
apply specifically to the situation at hand concerning how costs are to be handled in a criminal
case when there has been a change of venue:

§50.120.1. Costs in change of venue. — costs defined. In any criminal or civil case
in which a change of venue is taken from one county to any other county, and
whenever a prisoner shall, for any cause, be confined in the jail of one county, such
costs shall be paid by the county in which the case, indictment or information was
originally instituted to the county in which the case is actually tried or where the
prisoner is confined, except when such case is transferred for improper venue. In
all cases where fines are imposed upon conviction under such indictments or
prosecutions, or penalties or forfeitures of penal bonds in criminal cases, are
collected, by civil action or otherwise, payable to the county, such fines, penalties
and forfeitures shall be paid into the treasury of the county where such indictment
or information was originally found or such prosecution originally instituted, for
the benefit of the public fund of the county.

550.130. Judge and prosecuting attorney to certify cost bill. The bill of costs in
any case, as provided for in section 550.120, shall be certified to by the judge and
prosecuting attorney, as now provided by law, and shall be presented to the county
commission in which the indictment was originally found, or proceedings instituted,
and shall thereupon be paid as if the cause had been tried or otherwise disposed of
in said county.
(Emphasis added).
Thus, when a change of venue has occurred in a criminal case, the county that originated
the prosecution by indictment or information—in this case, Warren County—is responsible for

costs even though the prosecution was handled and concluded in a separate county—here,

Montgomery County. Accordingly, we hold that, under § 550.120.1, Montgomery County’s only

 

2 All statutory citations are to RSMo 2016 unless otherwise stated.
3

 
recourse was to seek recovery of its costs from Warren County. But that is not what happened
here. Montgomery County sought costs from both Boston and the State, and failed to seek
recovery of those costs from Warren County as required by § 550.130 Because Montgomery
County was without statutory authority to seek or recover costs from Boston or the State, such
actions were improper, and it was therefore error for the trial court to deny Boston’s motion to
retax costs. See State ex rel. Merrell v. Carter, 518 8.W.3d 798, 800: (Mo.banc 2017).

Accordingly, Boston’s first point is granted. We reverse and remand with instructions for
the trial court to vacate all court-cost tax bills issued in this case and to refund any costs recovered
by Montgomery County. See Wiley v. Daly, 472 S.W.3d 257, 263 (Mo.App.E.D. 2015) (The
clear intent of the General Assembly expressed in § 514.270 is to enable citizens to challenge
unauthorized court costs and obtain a refund[.]”) (emphasis added).

Finally, we address Boston’s assertion that we should declare him excused from all! costs
liability because within the aforementioned cost bill Montgomery County issued to the State, there
is a finding by that court that he was insolvent. Since that insolvency finding is contained in the
bill of costs that we have ordered vacated, we decline to render any opinion regarding the future
legal effect of the court’s factual finding as to Boston’s insolvency. See Schultz v. Warren County,

249 S.W.3d 898, 901 (Mo.App.E.D. 2008).

 

3 The State suggests that Montgomery County was seeking to collect costs “on behalf of Warren
County.” However, the State concedes that no statutory scheme exists for such an arrangement.

4

 
Conclusion
For the reasons set forth above we reverse the trial court’s order denying Boston’s motion

to retax costs and remand this matter for proceedings consistent with this opinion.

J ames M, Rowe,

Sherri B. Sullivan, P.J., and
Kurt S. Odenwald, J., concur.

 
