Maryland Attorney General Opinion 95 OAG 123

Gen. 123] 123

COURTS AND JUDGES

C RIMINAL P ROCEDURE – F EES – C OSTS – A SSESSMENT OF “C OSTS
OF P ROSECUTION” FOR WHICH A CONVICTED DEFENDANT IS
LIABLE

August 12, 2010

The Honorable Joel J. Todd
State’s Attorney for Worcester County

You have asked for an interpretation of certain provisions of
the Annotated Code of Maryland concerning the assessment of the
“costs of prosecution” against a person convicted of a crime. In
particular, you ask who assesses these costs and how they are
determined. You indicate that there has been a disagreement with
the Public Defender’s Office as to whether “costs of prosecution” in
these statutes are the same as court costs.

In our opinion, the “costs of prosecution” assessed against a
convicted defendant are the court costs associated with the criminal
case. They are assessed by the court in which the prosecution took
place, in accordance with the statutes defining costs and schedules
adopted by the State Court Administrator.

I

Liability for Costs of Prosecution

In posing your question, you cite Annotated Code of Maryland,
Courts & Judicial Proceedings Article (“CJ”), §7-502 and certain
related statutes. CJ §7-502 provides simply:

A person who is found guilty of a crime
shall be liable for the costs of the person’s
prosecution.
124 [95 Op. Att’y

For purposes of this section, “costs” is defined to mean “the cost of
prosecuting a person for a crime.” CJ §7-501(b).1 If a defendant
fails to pay those costs, the State may collect the unpaid costs from
the defendant in the same manner as a civil judgment. CJ §7-505.
A defendant who is found not guilty is not liable for costs. CJ §7-
203(b)(2). Regardless of the outcome of a criminal case, a county
is not liable for the costs of the proceeding. CJ §7-203(b)(1).

Costs are not a fine or part of the penalty for a crime;
accordingly, a defendant may not be imprisoned for failure to pay
costs. CJ §§7-501(d)(2), 7-505(b). However, payment of costs may
be made a condition of probation. Annotated Code of Maryland,
Criminal Procedure Article (“CP”), §6-219(b)(2).2

To understand a convicted defendant’s liability for the “costs
of prosecution” under these provisions, one must take a broader look
at the subject of “costs.” This includes consideration of the various
statutes, constitutional provisions, common law rules, and court rules
that relate to costs, and their historical development. We focus on
the evolution of various provisions of State law concerning costs that
relate to criminal prosecution.

II

Analysis

The assessment of costs against a party – in a criminal
prosecution or other litigation – was not part of the common law.
See Reese v. Mandel, 224 Md. 121, 130, 167 A.2d 111 (1961); 20
Am.Jur. 2d Costs §103. As a general rule, liability for, and the
assessment of, costs is governed by statute. The laws regarding
“costs” may be categorized in three ways: (1) laws that set forth the
elements of costs; (2) laws that determine liability for costs; and (3)
laws that govern the disposition of payments received for costs. In

1
For purposes of this statute, “crime” is defined as “any act or
omission for which a statute or ordinance imposes a fine or
imprisonment.” CJ §7-501(c)(1). It does not include a municipal
infraction under Annotated Code of Maryland, Article 23A, §3. CJ §7-
501(c)(2).
2
In addition, the payment of costs is a condition for the grant of a
nolle prosequi by the Governor, which is itself a rare occurrence. CP §1-
208.
Gen. 123] 125

other words, they respond to the questions: What are they? Who
pays them? Where do they go?

In Maryland, many of the statutes that govern costs have been
part of State law, in some form, for centuries. Others are of very
recent origin. Provisions have been codified in disparate parts of the
code and recodified over the years, sometimes without explicit cross-
references to each other. Initially, costs were part of the system for
financing certain State offices that were funded through fees. The
laws concerning costs provided the means of assessing liability for,
and collecting, those fees. Over time, the link between costs and the
funding of specific offices was gradually abandoned. Instead, while
costs are still computed as fees associated with particular actions or
services of State offices, the resulting revenue is now generally
directed to the general fund or certain special funds for appropriation
in the State budget.

A. Funding of State Officers through Fees Assessed as Costs

Fees as a Direct Source of Compensation of State Officers

The assessment of costs in criminal cases began as a way of
directly funding State entities involved in a prosecution. Beginning
in the colonial period, various State offices, including prosecutors,
sheriffs, and clerks of court, were funded through fees assessed in
connection with individual prosecutions, including attorney
appearance fees. See, e.g., Chapter 48, §7, Laws of Maryland 1715
(appearance fees of attorneys);3 see also Chapter 292, Laws of
Maryland 1846 (fees of clerk of court); Chapter 164, §1, Laws of
Maryland 1820 (fees of constable). In criminal cases resulting in a
conviction, such costs were assessed against the individual who had
made them necessary – the convicted defendant. See, e.g., Chapter
6, Laws of Maryland 1777 (recovery of fines and forfeitures “with

3
This law provided, in relevant part:
...there shall be paid ... to his majesty’s attorney-
general, for any action in the provincial court, at
the suit of his majesty, indictment, presentment, or
information, the sum of four hundred pounds of
tobacco and no more, any law, statute or custom
to the contrary in anywise notwithstanding.
This law also set appearance fees – also denominated in pounds of tobacco
– for private attorneys litigating matters in the provincial and appellate
courts.
126 [95 Op. Att’y

costs”); Chapter 138, §22, Laws of Maryland 1809 (assessing costs
of prosecution against incarcerated offender’s estate).4 On the other
hand, if the accused were acquitted or sentenced to a minimal fine,
the county was liable for costs. See Chapter 11, Laws of Maryland
1781.

This practice was enshrined in the original version of the 1867
State Constitution that, in amended form, remains the foundation of
Maryland jurisprudence today. Under the original version of Article
V, §9 of the State Constitution, State’s Attorneys were funded by
“such fees and commissions as are now, or may hereafter be,
prescribed by law.” In 1901, this provision was amended to allow
for compensation of State’s Attorneys through “fees and
commissions or salary.” Chapter 185, Laws of Maryland 1900,
ratified November 5, 1901 (emphasis added). This amendment thus
offered the option of paying the State’s Attorney directly instead of
relying on appearance fees related to individual cases.5

4
These provisions are still part of Maryland law, though with
substantial revision. See CJ §7-502; Annotated Code of Maryland,
Correctional Services Article, §9-605.
5
The effect of that amendment was tested a few years later after the
General Assembly passed a public local law that provided for the
compensation of the Somerset County State’s Attorney by salary paid
directly by the county. Tull v. Sterling,133 Md. 164, 167, 104 A. 191
(1918) (“The salary of the State’s Attorney for Somerset County is not
payable from fees, which he is authorized to charge and collect, but by
direct payment from the county in equal quarterly installments.”). The
fees which the State’s Attorney had previously received for compensation
and expenses of that office and which were taxed as part of costs, were
thereafter to be paid over by the clerk to the county commissioners, to be
applied to the payment of the State’s Attorney’s salary. Id.
In Tull, the State’s Attorney claimed an entitlement to appearance
fees as additional compensation and brought suit against the court clerk
for appearance fees paid by the State related to specific cases he had
prosecuted. The Court of Appeals rejected the State’s Attorney’s
complaint, holding that the statute clearly relieved him of any claim to the
appearance fees that had been taxed as costs:
There could hardly be a more plain and positive
statement of the legislative purpose to limit the
State’s Attorney’s compensation, for all his
official services, to the amount of the annual
salary which the statute substituted for the fees
which he had theretofore been accustomed to
(continued...)
Gen. 123] 127

The offices of other locally elected State officials – the clerks
of the circuit courts, sheriffs, registers of wills – were similarly
funded by fees under the original version of the 1867 Constitution.
For example, under the original versions of Article III, §45 and
Article IV, §10,6 the compensation of court clerks and their staffs
derived directly from statutory fees that were charged by the clerk.
To the extent the clerks collected revenues above the compensation
prescribed by law, they were required annually to remit that surplus
to the State Treasurer. Maryland Constitution, Article XV, §1.

As of the turn of the 20 th century, as the Court of Appeals later
wrote, fees directed to State’s Attorneys went toward their
compensation:

It seems perfectly clear from these
provisions, that appearance fees received by
State’s Attorneys were intended to be treated,
like other fees, as items of compensation for
official service, and as such, were required to
be reported to the Comptroller and the excess
over the prescribed salary paid annually into
the State Treasury.

Tull v. Sterling, 133 Md. at 167.

5
(...continued)
receive.
Id. at 167-68. Accordingly, the Court held that the State’s Attorney was
not entitled to payment of the appearance fees that had been paid to the
clerk by the State.
6
Article IV, §10 provided, in pertinent part:
The Clerks of the several Courts ... shall ... be
allowed the fees which appertain to their several
offices, as the same now are or may hereafter be
regulated by law ....
Article IV, §10 (1867). A related portion of Article III, §45 provided:
... such compensation of Clerks, Registers,
assistants and office expenses shall always be paid
out of the fees or receipts of the offices,
respectively.
Article III, §45 (1867).
128 [95 Op. Att’y

Fees Recovered as Costs of Litigation

The specific fees assessed for the services of State’s Attorneys,
clerks, and other State officers in connection with criminal cases
were set forth in statute. The apportionment of the liability for these
costs was governed by separate statutes and by a common law
interpretation of the statutes.

Most of the provisions specifying fees, which had been part of
Maryland’s statutory law for many years, were collected in former
Article 36 of the Maryland Code. For example, in the 1911 version
of the Maryland Code, various provisions setting forth the fees
charged by clerks, registers of wills, sheriffs, constables, and other
officers appeared in Article 36 entitled “Fees of Officers.” Among
the fees related to criminal cases were the appearance fees payable
to State’s Attorneys. Former Article 36, §10 (1911). Other fees
related to criminal cases concerned services provided by clerks,
constables, and justices of the peace. See, e.g., Former Article 36,
§§12, 14, 19 (1911).

Article 38, entitled “Fines and Forfeitures,” had several
sections governing the recovery and disposition of fines and
forfeitures, and assigned liability for the costs of criminal
prosecution to convicted defendants. It provided that a defendant
convicted of an offense was to be assessed the “costs of his
prosecution”, among other things. Former Article 38, §1 (1911).
When the Legislature first authorized probation as a possible
disposition of a criminal case for first offenders, it gave the
sentencing court the option of requiring the offender to pay the
“costs of the prosecution” as a condition of that status. Chapter 402,
Laws of Maryland 1894, codified at Article 27, §304A.

Article 24, entitled “Costs,” did not concern the amount of
costs – a topic covered in Article 36 – but rather dealt with liability
for costs in particular situations – e.g., when a case was removed
from one county to another. It specified a number of circumstances
under which costs were assessed to the county. With particular
relevance to criminal prosecutions, it provided that, if the defendant
was acquitted or fined no more than 15 cents, the costs were to be
paid by the county. Former Article 24, §7 (1911). In addition, a
common law rule developed under which the county paid the costs
associated with a criminal prosecution even if there was a
conviction, if the defendant was indigent or otherwise failed to pay.
Gen. 123] 129

Mayor and City Council of Baltimore v. Pattison, 136 Md. 64, 67,
110 A. 106 (1920).7

B. Evolution of Fee and Cost Provisions in Twentieth Century

Over time, the State Constitution and relevant statutes were
amended to eliminate the direct connection between the fees that
were taxed as costs of litigation and the funding of local State
officers. However, the fees have been retained as a source of State
revenue.

Separation of Office Funding from Fee Revenue

By the middle of the 20 th century, the provision of the
Constitution that dealt with the compensation of State’s Attorneys –
Article V, §9 – had been amended to eliminate the reference to fees
and commissions and to provide solely for salaried compensation of
State’s Attorneys. Chapter 490, Laws of Maryland 1943, ratified
November 7, 1944. Shortly thereafter, the General Assembly
enacted legislation setting salaries for State’s Attorneys to be funded
through payments by the respective counties. Chapter 791, Laws of
Maryland 1945, enacting Article 10, §37A, now codified as amended
at CP §15-401 et seq.8

7
In 1924, legislation was enacted that would have relieved
Baltimore City of this liability, as well as changed the manner of funding
the State’s Attorney and other State officers in Baltimore City. Chapter
576, Laws of Maryland 1924. However, the Court of Appeals held that
the funding provisions violated the Budget Amendment of the State
Constitution (Article III, §52) and that the provision relieving Baltimore
City of liability for defendants’ costs, though constitutional in itself, was
not severable from the rest of the bill. Mayor and City Council of
Baltimore v. O’Conor, 147 Md. 639, 653, 128 A. 759 (1925).
At the same time, an amendment of Article V, §9 of the State
Constitution absolved Baltimore City from paying appearance fees to the
State’s Attorney. Chapter 177, Laws of Maryland 1924, ratified
November 4, 1924.
8
That section also provided that any fees to which the State’s
Attorney would be entitled “shall be collected and paid over to the board
of county commissioners or county council of his county and credited to
the general funds of the county.” Article 10, §37A (last paragraph), now
codified at CP §15-402(b)(2). It is not clear what, if any, fees would
currently fall into this category as the appearance fees to which State’s
Attorneys were entitled under Article 36, §10 are now specifically
(continued...)
130 [95 Op. Att’y

The link between court costs and the expenses of the circuit
court clerks was also severed. In 1941, Article III, §45 of the
Constitution was amended to delete a provision stating that the
clerk’s offices were funded solely by fees; instead, compensation
was to be “such as may be prescribed by law.” Chapter 509, Laws
of Maryland 1941, ratified November 3, 1942. In 1986, Article IV,
§10 of the State Constitution was amended to provide that the clerks
of court are to be funded through appropriations in the State budget
and that their revenues would be treated as State revenues. Chapter
722, Laws of Maryland 1986, ratified November 4, 1986. See also
72 Opinions of the Attorney General 21 (1987) (discussing
background of constitutional amendment); 68 Opinions of the
Attorney General 96 (1983) (discussing compensation of clerks and
staff prior to amendment).

Recodification of Longstanding Fee and Cost Provisions

In 1973, the creation of the Courts & Judicial Proceedings
Article resulted in the recodification of many provisions concerning
costs – in particular, the provisions of Article 24 concerning liability
for costs assessed by the clerks, along with provisions in Article 36,
concerning the precise fees charged by the clerks and the appearance
fees payable to attorneys. Chapter 2, §2, First Spec. Sess., Laws of
Maryland 1973. The specific fees charged by the clerks were listed
in new CJ §7-202. Shortly thereafter, the General Assembly
amended that section to eliminate the specification of fees, and
instead authorized the State Court Administrator to devise a system
of fees subject to the approval of the Board of Public Works.
Chapter 548, Laws of Maryland 1975. Attorney appearance fees
were recodified in CJ §7-204. Subsequently, the Legislature
dedicated the revenues from those fees, for criminal as well as civil
cases, to the support of the local law library and related purposes in
most counties. See CJ §7-204(b)-(w).9

8
(...continued)
designated for the support of law libraries in the various counties. See CJ
§7-204(b)-(w).
9
The General Assembly eliminated the collection of appearance fees
in Montgomery County. Chapter 662, Laws of Maryland 1985. Also, as
noted above, a 1924 amendment of Article V, §9, had relieved Baltimore
City of liability for appearance fees to the State’s Attorney. See note 7
above.
Gen. 123] 131

The provision that imposed liability for the costs of prosecution
on a convicted criminal defendant remained in Article 38, §1 for
another 30 years until a later code revision recodified it as CJ §7-
502. Chapter 26, §2, Laws of Maryland 2004.10 The General
Assembly also amended and recodified the provision allowing costs
to be a condition of probation while expanding the availability of
probation. It has retained the option of requiring the probationer to
pay costs. See CP §6-219(b)(2).

As part of the 1973 code revision, the provision that imposed
liability for costs on county governments in criminal cases when
there was an acquittal or minimal sentence was moved from Article
24, §7 to Article 38, §4A. Chapter 2, §2, First Spec. Sess., Laws of
Maryland 1973. Subsequently, Baltimore City disputed its liability
to the State for costs associated with criminal prosecutions under
Article 38, §4A, when the accused prevailed, was sentenced to a
minimal fine, or was indigent. Attorney General Burch confirmed
the clerk’s authority to charge the City for such costs. 60 Opinions
of the Attorney General 63 (1975). The City later declined to pay;
the Comptroller withheld corresponding State funds due to the City.
Litigation ensued in which the Court of Appeals held that the City
was liable for such costs. State v. Mayor and City Council of
Baltimore, 296 Md. 67, 459 A.2d 585 (1983).

After the Court of Appeals decision, the City pursued repeal of
Article 38, §4A in the General Assembly. It succeeded in 1986.
Chapter 550, Laws of Maryland 1986. That legislation also added
CJ §7-203, which bars a clerk from assessing costs of a criminal
prosecution against a county (or Baltimore City). It also retained the
part of the former statute that barred the clerk from assessing costs
against a defendant who is found not guilty.

Finally, as part of the creation of the Courts & Judicial
Proceedings Article, the Legislature recodified Article 36, §14,
concerning fees charged by the clerks of the appellate courts, as CJ
§7-102 and included in the same subtitle other provisions concerning
liability for appellate costs that had previously appeared in former
Article 5 of the code. A few years later, CJ §7-102 was amended to
dispense with the list of specific fees in favor of granting the State

10
The same legislation also recodified most of the other provisions
of Article 38 as part of Title 7, subtitle 5, of the Courts & Judicial
Proceedings Article.
132 [95 Op. Att’y

Court Administrator authority to set fees subject to the approval of
the Board of Public Works. Chapter 523, Laws of Maryland 1976.

C. Modern Cost Provisions

In recent years, the Legislature has created certain costs to be
assessed in criminal cases unrelated to fees for any particular office
or service.

Additional Costs in Criminal Cases to Finance Special Funds

In 1968, as part of the Criminal Injuries Compensation Act, the
General Assembly directed that additional costs in the amount of $5
be imposed on convicted defendants in criminal cases. Chapter 455,
§1, Laws of Maryland 1968, codified at Article 26A, §17. The
statute stated that political subdivisions would not be responsible for
this cost and also directed that the proceeds be paid to the State’s
general fund. Later amendments increased the amount of costs for
certain offenses and designated the proceeds for three special funds
related to services for crime victims – the Maryland Victims of
Crime Fund, the Victim and Witness Protection and Relocation
Fund, and the Criminal Injuries Compensation Fund. The cost
provisions were moved to Article 27, §830 and ultimately recodified
as CJ §7-409. Chapter 585, §2, Laws of Maryland 1996; Chapter 10,
§§1, 3, Laws of Maryland 2001. This statute thus not only
establishes the amount of the particular fee and assigns the liability
for that as costs to a particular party – i.e., a convicted defendant –
but also directs the disposition of the proceeds.

Creation of the District Court; Costs Designated as State
Revenues

After the District Court was created in 1970 pursuant to a
constitutional amendment,11 the General Assembly enacted
legislation providing for the imposition and collection of costs in the
District Court. Chapter 528, §1, Laws of Maryland 1970; Chapter
423, §9, Laws of Maryland 1971. The cost provisions were
originally codified in Article 26, §§150A, 155. With respect to
criminal cases, those provisions provided for the collection of costs
in the amount of $5, in addition to any costs required by the Criminal
Injuries Compensation Act, and directed that the proceeds be

11
See Chapter 789, Laws of Maryland 1969, ratified November 3,
1970.
Gen. 123] 133

remitted to the State. As part of the creation of the Courts & Judicial
Proceedings Article, these cost provisions were recodified as CJ
§§7-301, 7-302. Chapter 2, §1, First Spec. Sess., Laws of Maryland
1973.

D. Judicial Construction of “Costs of Prosecution” in Relation
to “Court Costs”

The history of cost provisions in State law outlined above
indicate that the “costs of prosecution” mentioned in CJ §7-502 are
simply the “costs” or “court costs” that are set forth in other parts of
the code or in the schedules devised by the State Court
Administrator. The reasoning of two decisions of the Court of
Appeals confirms that conclusion.

In Turner v. State, 61 Md. App. 1, 484 A.2d 641 (1984), rev’d,
307 Md. 618, 516 A.2d 579 (1986), the defendant pled guilty to a
robbery offense and was sentenced to five years imprisonment, with
credit for time served; the remainder of the sentence was suspended
and the defendant was placed on probation on the condition that he
pay court costs within 60 days of sentencing. The defendant failed
to pay the entire amount of costs within the allotted time, he was
found in violation of probation, and probation was revoked.

On appeal, the Court of Special Appeals held that the trial
court’s finding that the defendant had the ability to pay the fine was
not clearly erroneous and affirmed the revocation of probation.
However, the Court of Appeals reversed, holding that the record
demonstrated that the defendant failed to pay the costs because he
was indigent. In the course of their opinions, both appellate courts
referred to the “costs of prosecution” assessed under Article 38, §1,
the predecessor of CJ §7-502, as “court costs.” 61 Md. App. at 4-5;
307 Md. at 620-25.

In Medley v. State, 386 Md. 3, 870 A.2d 1218 (2005), the
Court of Appeals made clear that a particular expense could only be
awarded as a “cost of prosecution” under CJ §7-502 if that expense
was a “cost” as defined in other statutes or rules concerning costs.
In that case, the defendant was convicted of possession of marijuana,
based upon a guilty plea and an agreed statement of facts. The trial
court sentenced him to time served, $125 in court costs, and a “fine”
of $1,000 for the cost of the jury venire that had been assembled for
the case. The defendant filed a motion to correct an illegal sentence
and appealed when the motion was denied.
134 [95 Op. Att’y

The Court of Appeals acknowledged that “a sentencing judge
may assess court costs to a defendant in a criminal trial” citing
former Article 38, §1, but observed that the statute provided that
costs could not be part of a fine. 386 Md. at 6-7, 10. It thus
implicitly equated the “costs of prosecution” in that statute with the
concept of “court costs.” The Court then considered whether any
statute or rule would have allowed the trial court to award the costs
of the jury venire as part of the costs of prosecution. It found none.
Because there was “no plausible statutory authority” allowing the
assessment of such costs, the Court reversed the sentence and
remanded for a new sentencing. Id at 10-11.

E. Summary

As the discussion above indicates, CJ §7-502 authorizes a
court to assess the costs of prosecution against a convicted
defendant. The elements of costs are set forth in various statutes.
Thus, in a particular case, the court must look to the pertinent
statutes to assess costs.12 The key laws can be summarized as
follows.13

1. Costs of Criminal Cases in the Trial Courts

Unless the court orders otherwise, a trial court is to include an
assessment of “court costs” against the defendant as part of any
judgment of conviction, or disposition by probation before judgment,
or plea of nolo contendere. Maryland Rule 4-353.

12
Similarly, federal law authorizes federal district courts to order a
convicted defendant to pay the costs of prosecution. 28 U.S.C. §1918(b).
The elements of those costs are set forth in statute. 28 U.S.C. §1920. A
court may not award costs that are not enumerated in that statute. See
United States v. Mink, 476 F.3d 558 (8th Cir. 2007) (district court lacked
authority to assess jury costs against defendant as cost of prosecution);
United States v. Bevilacqua, 447 F.3d 124 (1st Cir. 2006) (trial court
lacked authority to require defendant to pay cost of special prosecutor as
a cost of prosecution).
13
A particular criminal case may include other costs authorized by
statute. See, e.g., CJ §7-402 (sheriff’s fees).
Gen. 123] 135

District Court

In the District Court, court costs paid by a convicted defendant
are $22.50, in addition to any costs imposed under CJ §7-409,14
which is described below. CJ §7-301(b). Some of the proceeds of
this assessment under CJ §7-301 are designated for the Criminal
Injuries Compensation Fund and the Victim and Witness Protection
and Relocation Fund. CJ §7-301(e).

Circuit Courts

Costs and fees in the circuit courts are determined by the State
Court Administrator and are to be uniform throughout the State. CJ
§7-202(a). The State Court Administrator has issued a schedule of
costs that includes criminal cases. See Revised Schedule of Circuit
Court Charges, Costs and Fees, §II.A.3 (July 1, 2010), available at
<http://www.courts.state.md.us/circuit/feeschedule.html>. As a
general rule, costs are to be assessed against a convicted defendant
in the amount of $80; a $25 charge may be assessed with respect to
certain filings related to bail bonds. Id. A circuit court may not
assess costs if the defendant is found not guilty. CJ §7-203.

Additional Costs under CJ §7-409

In both the District Court and the circuit courts, the court must
impose additional costs in the amount of $3 against a convicted
defendant. CJ §7-409(d). The revenues generated by these costs are
divided between the State victims of Crime Fund and the Criminal
Injuries Compensation Fund, according to a statutory formula. CJ
§7-409(f). For certain enumerated crimes, both the District Court
and the circuit courts are to impose additional costs against
convicted defendants, the proceeds of which are distributed to the
two funds mentioned above, as well as the Victim and Witness
Protection and Relocation Fund. CJ §7-409(a)-(c), (e). In the circuit
courts, the additional cost is $45; in the District Court, it is $35. CJ

14
CJ §7-301(b)(2) actually refers to additional costs imposed “under
the Criminal Injuries Compensation Act.” As indicated earlier in this
opinion, the cost provision of that Act has been substantially amended
since the original passage of the Act in 1968 and is now recodified
separately at CJ §7-409. (The rest of the Act now appears largely in the
Criminal Procedure Article). The General Assembly may wish to amend
CJ §7-301(b)(2) in order to provide a more precise reference to the cost
provision it describes.
136 [95 Op. Att’y

§7-409(b)-(c). These additional costs may not be waived by the
court, unless the defendant is indigent. CJ §7-405.

2. Costs of Criminal Cases in the Appellate Courts

In cases before the appellate courts, costs include “any cost
other than counsel fees necessary for the prosecution of an appeal,
application for leave to appeal, or filing a petition for writ of
certiorari including but not limited to”:

• clerk’s fees,

• the cost of preparing a transcript of the
testimony,

• the cost of preparing and transmitting the
record, and

• the cost of the briefs, appendices, and
printed record extract.

CJ §7-101; see also CJ §7-104. Pursuant to statute, the State Court
Administrator has established a schedule of clerk’s fees. See
Revised Schedule of Fees to be Charged by the Clerk of the Court
of Appeals and the Clerk of the Court of Special Appeals (January
1, 1995), reprinted in Editor’s Note to CJ §7-102 (2006 Repl. Vol.).

Costs may be assessed against the State in a criminal appeal.
In that instance, the political subdivision in which the case originated
is to pay those costs, upon notice by the Attorney General. CJ §7-
104(b). Conversely, if costs are assessed against the defendant, they
are to be paid to the jurisdiction in which the case originated. If the
defendant fails to pay them, the State’s Attorney is authorized to
recover them for the political subdivision. CJ §7-104(c).

III

Conclusion

In our opinion, the “costs of prosecution” assessed against a
convicted defendant are the court costs associated with the criminal
case. They are assessed by the court in which the prosecution took
Gen. 123] 137

place, in accordance with the statutes defining costs and schedules
adopted by the State Court Administrator.

Douglas F. Gansler
Attorney General

Robert N. McDonald
Chief Counsel
Opinions and Advice