                    IN THE SUPREME COURT OF IOWA

                           No. 89 / 05-0621

                        Filed September 22, 2006


STATE OF IOWA,

      Appellee,

vs.

WILLIAM BASINGER, FRANK CORDARO, CARLA DAWSON, GILBERT
DAWES, JEANNE FIRTH, FRAN FULLER, JAMES JOHNSON, JANE
MAGERS, MICHAEL SCHORSCH, MARIAN SOLOMAN, BRIAN TERRELL,
CAROLYN WALKER, and ELTON DAVIS,
      Appellants.


      Appeal from the Iowa District Court for Polk County, Robert A.

Hutchison, Judge.



      Defendants appeal taxation of jury and court reporter fees.

AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED

WITH DIRECTIONS.



      Sally Frank, Drake University Legal Clinic, Des Moines, and Judie

Levy, Student Legal Intern, for appellants Basinger, Cordaro, Dawson,

Dawes, Firth, Fuller, Johnson, Magers, Schorsch, Soloman, Terrell and

Walker.



      Tara Elcock, Des Moines, for appellant Davis.



      Thomas J. Miller, Attorney General, Darrel Mullins, Assistant

Attorney General, John P. Sarcone, County Attorney, Olubunmi Salami,
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Assistant County Attorney, and Tanya Fawcett, Student Legal Intern, for

appellee.
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LAVORATO, Chief Justice.

      In this appeal, we are asked to determine whether the clerk of the

district court correctly taxed each jointly tried defendant convicted of a

simple misdemeanor a jury fee of $100 pursuant to Iowa Code section

625.8(1) (2003) and a court reporter fee of $15 per day pursuant to Iowa

Code section 625.8(2). We conclude the clerk correctly taxed the jury and

court reporter fee to each nonindigent defendant. However, because of Iowa

Rule of Criminal Procedure 2.67(9), the clerk incorrectly taxed the court

reporter fee to the indigent defendants. Accordingly, we affirm in part and

reverse in part the judgment of the district court and remand the case for a

correct entry of costs.

      I. Background Facts and Proceedings.

      On March 22, 2003, a number of individuals gathered across the

street from the STARC Armory in Johnston, Iowa to protest the war in Iraq.

A security officer with the Amory warned the protestors that they would be

arrested for trespass if they crossed a tar line on the road. Disregarding the

warning, the protestors crossed the line. They also disregarded the officer’s

warning that if they did not leave they would be arrested.

      Later that day, William Basinger, Frank Cordaro, Elton Davis, Carla
Dawson, Gilbert Dawes, Jeanne Firth, Fran Fuller, James Johnson, Jane

Magers, Michael Schorsch, Marian Soloman, Brian Terrell, and Carolyn

Walker (the defendants) were arrested and charged with trespass, a simple

misdemeanor, in violation of Iowa Code sections 716.7(2)(b) and 716.8(1).

Dawson was arrested later than the others. She had crossed the tar line to

take pictures of the group, was told she would be arrested if she did not

leave, and did not leave after being warned.

      The defendants pleaded not guilty and made a jury demand. The

defendants were jointly tried, and a jury found each defendant guilty of the
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charge. Later, the district court imposed the following sentence on each

defendant:   $50 fine (pursuant to Iowa Code section 903.1(1)(a)), 30%

criminal penalty surcharge (pursuant to Iowa Code sections 903.1(4) and

911.2), $125 law enforcement initiative surcharge (pursuant to Iowa Code

section 911.3(1)(a)), and court costs. In addition, the defendants were each

taxed as costs the full amount of the court reporter fee and the jury fee;

those fees were not apportioned among the defendants.

      The defendants appealed to the district court, which affirmed each

conviction. The court concluded no errors were committed by the clerk in

taxing the costs to the defendants. In so concluding, the court noted that

each defendant was given a file and unique case number, the cases could

have been tried individually, and a separate finding of guilt was entered for

each of the defendants. As to the court reporter fee, the court noted that it

could not find anything in the record that showed only two indigent

defendants requested a transcript. The court concluded that because none

of the defendants opted out of the trial with a court reporter, court reporter

fees were properly taxed to each defendant.

      We granted the defendants’ application for discretionary review. See

Iowa R. App. P. 6.201-6.203 (rules governing discretionary review).
      II. Issues.

      The defendants raise the question whether jointly tried defendants

should each be taxed the full amount of the jury and court reporter fees.

Additionally, the defendants raise the question whether all defendants

should have been taxed the full court reporter fees when, according to the

defendants, only indigent defendants requested a court reporter.
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      III. Scope of Review.

      Because resolution of the issues raised turns on interpretation of

statutes, our review is for correction of errors at law. Hansen v. Cent. Iowa

Hosp. Corp., 686 N.W.2d 476, 479 (Iowa 2004).

      IV. Taxation of Jury and Court Reporter Fees.

      Iowa Code section 625.8(1) provides that “[t]he clerk of the district

court shall tax as a court cost a jury fee of one hundred dollars in every

action tried to a jury.” Iowa Code section 625.8(2) provides that “[t]he clerk

of the district court shall tax as a court cost a fee of fifteen dollars per day

for the services of a court reporter.” The clerk of the district court taxed

each defendant $100 as a jury fee and $150 as a court reporter fee.

(Because a court reporter was needed for the eight-day trial and two

additional hearings, the court reporter fee amounted to $150.)

      The defendants contend the clerk should have apportioned the $100

jury fee among the thirteen defendants requiring each defendant to pay

1/13 of the fee or $7.69. The defendants contend that the clerk should also

have apportioned the $150 court reporter fee among the thirteen defendants

requiring each defendant to pay 1/13 of the fee or $11.54.

      Not surprisingly, the State disagrees. The State notes that the words
“every action” in the jury fee statute supports the district court’s ruling that

the clerk committed no error in taxing a jury fee of $100 against each

defendant. See Iowa Code § 625.8(1). “Action,” the State asserts, is defined

as “any judicial proceeding, which, if conducted to a determination, will

result in a judgment or decree.” Black’s Law Dictionary 31 (8th ed. 2004).

In this case, the State argues, thirteen judgments of guilty were entered as a

result of thirteen actions tried to a jury; the clerk accordingly taxed court

costs for each judgment entered. The State relies on the same reasoning to

support the district court ruling that the clerk committed no error in taxing
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a court reporter fee of $15 per day against each defendant for each of the

hearings.

      This court has long been committed to the rule that costs are not

apportioned in criminal cases.     See, e.g., City of Cedar Rapids v. Linn

County, 267 N.W.2d 673, 674 (Iowa 1978); State v. Belle, 92 Iowa 258, 260-

61, 60 N.W. 525, 526 (1894); State v. Verwayne, 44 Iowa 621, 621 (1876).

In Belle, this court held that the predecessor statutes to what are now Iowa

Code sections 625.1 (costs recoverable by the successful party against the

losing party), 625.3 (court can make an equitable apportionment of costs

when a party is successful on part of the party’s demand), and 625.4

(apportionment among numerous parties) do not apply to criminal

prosecutions. See City of Cedar Rapids, 267 N.W.2d at 674 (citing Belle, 92

Iowa at 260, 60 N.W. at 526, for this proposition).          In reaching its

conclusion, the court in Belle reasoned as follows:

      It seems to us clear from the language of these sections that
      they do not apply to criminal prosecutions. In criminal
      prosecutions the party is successful as to all or as to no part of
      his demand, the demand upon the one hand being guilty, and
      upon the other, innocent. Though there may be several
      defendants and several judgments, there can be but one
      plaintiff; and, where there are several defendants and several
      judgments, the costs follow the judgment without
      apportionment.

92 Iowa at 260-61, 60 N.W. at 526 (reversing district court’s apportionment

of court costs among the defendant, the county, and the state and taxing all

of the costs to the defendant in a murder case; the district court had

apportioned the costs because the jury found defendant guilty of a lesser

included offense).

      We adopt the rule that costs are to be taxed by the case, that is, one

fee for each case. Such a rule is in harmony with the jury and court

reporter fee statutes and the no apportionment rule. The rule makes sense
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because each defendant here had a case file with a separate case number

and each had a case presented to the jury for which a court reporter was

used. It was necessary for the prosecution to present evidence specific to

each defendant to prove the charge against each defendant. Viewed in this

manner, the rule also eliminates the defendants’ objection that the clerk

here was trying to recover multiple times for the same costs. Accordingly,

we conclude each defendant was properly taxed a jury fee of $100 for his or

her case and a court reporter fee of $15 per day except as to the indigent

defendants, as we discuss later in this opinion.

      V. Whether All Defendants Should be Taxed Court Reporter Fees.

      Iowa Rule of Criminal Procedure 2.67(9), pertaining to simple

misdemeanors, provides in relevant part:

      The proceedings upon trial shall not be reported, unless a
      party provides a reporter at such party’s expense. . . . If the
      defendant is indigent and requests that the proceedings upon
      trial be reported, the judicial magistrate shall cause them to be
      reported by a reporter . . . at public expense.

Iowa R. Crim. P. 2.67(9).

      The defendants contend that only two of the defendants, both of

whom were indigent, requested court reporter services and that none of the

defendants who had funds made such a request. The defendants further

contend that the rule does not shift the costs to the defendant at the end of

trial as part of the costs of the action but only states that the reporter will

be provided at public expense. In these circumstances, the defendants

conclude, none of the defendants should have to pay the court reporter fee

because the rule only provides that the reporter will be provided at public

expense.

      We agree with the defendants that court reporter fees cannot be taxed

against the indigent defendants because rule 2.67(9) clearly provides
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otherwise. However, contrary to the defendants’ contention, the rule only

exempts indigent defendants and says nothing about a blanket exemption

for all other jointly tried defendants.      For this reason, we think the

defendants are reading the rule too broadly.

      The record fails to show that any of the nonindigent defendants

objected to having the proceedings reported. They had the advantage of

such services, and we consider their silence as a waiver of any objection to

having the proceedings reported.          Having failed to object, they are

responsible for the court reporter fee.

      We disagree with the district court’s holding that Iowa Code section

815.9(3) somehow obligates the indigent defendants in this case for the

court reporter fee. That provision provides:

      If a person is granted an appointed attorney, the person shall be
      required to reimburse the state for the total cost of legal
      assistance provided to the person. “Legal assistance” as used
      in this section shall include not only an appointed attorney,
      but also transcripts, witness fees, expenses, and any other
      goods or services required by law to be provided to an indigent
      person entitled to an appointed attorney.

Iowa Code § 815.9(3) (first emphasis added). As the defendants point out,

none of the defendants requested or was granted a court-appointed

attorney.   We agree with the defendants that by its language section

815.9(3) does not apply.

      The State cites Iowa Code section 815.13 to uphold the district court

ruling. That provision provides:

            The county or city which has the duty to prosecute a
      criminal action shall pay the costs of depositions taken on
      behalf of the prosecution, the costs of transcripts requested by
      the prosecution, and in criminal actions prosecuted by the
      county or city under county or city ordinance the fees that are
      payable to the clerk of the district court for services rendered
      and the court costs taxed in connection with the trial of the
      action or appeals from the judgment. The county or city shall
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      pay witness fees and mileage in trials of criminal actions
      prosecuted by the county or city under county or city
      ordinance. These fees and costs are recoverable by the county
      or city from the defendant unless the defendant is found not
      guilty or the action is dismissed, in which case the state shall
      pay the witness fees and mileage in cases prosecuted under
      state law.

Iowa Code § 815.13.      Because the district court did not consider this

provision in its ruling, we will not consider it for the first time on appeal.

See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (holding that court will

not consider an issue raised for the first time on appeal). Moreover, we have

serious doubts whether the statute even applies.
      VI. Disposition.

      In sum, we conclude that the clerk of the district court correctly taxed

a jury fee of $100 to each defendant. The clerk also correctly taxed a court

reporter fee of $15 per day to each nonindigent defendant but incorrectly

taxed such fee to the indigent defendants. Accordingly, we affirm in part

and reverse in part the judgment of the district court and remand the case

for a correct entry of costs.

      AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED

WITH DIRECTIONS.
