Delaware Trial Handbook § 28:9. COSTS AS PART OF A CRIMINAL JUDGMENT

By statute, a court may require a convicted defendant who has utilized court-appointed counsel or the Public Defender’s Office to pay the costs of his or her defense in that court.184 Costs that may be imposed are limited to expenses specially incurred by the State in defending the convicted person. Such costs may not include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies if such expenditures must be made by the public irrespective of specific violations of law.185

A court may not require a defendant to pay costs unless the defendant is or will be able to pay them. In determining the amount and method of payment of such costs, a court must take into account the financial resources of the defendant and the nature of the burden that payment of costs will impose.186

When a court determines that a defendant must pay the costs of his or her defense, the court may grant permission for payment to be made within a specified period of time or in specified installments. If no such permission is granted, the full amount is immediately due and owing.187 If the defendant is to be placed on probation or the imposition of execution of a sentence is to be suspended, the court may make payment of such costs a condition of probation or the suspension of the sentence.188

184. 10 Del. C. § 8601(a); Super. Ct. Cr. R. 44(g). Similarly, if the defendant is unsuccessful on a post-conviction motion, the State may move for an order requiring the defendant to reimburse the State for public funds expended on behalf of the defendant. The judge may grant the motion only if the defendant’s claim is so completely lacking in factual support or legal basis so as to be insubstantial or the defendant has otherwise abused the right to bring post-conviction motions. The judge may require reimbursement of costs and expenses only to the extent reasonable in light of the defendant’s present and probable future financial resources. Super. Ct. Cr. R. 61(j). Although 10 Del. C. § 8601 has been interpreted as applying to reimbursement of attorney’s fees, see Potter v. State, 547 A.2d 595, 601 (Del. 1988), the statute also appears to include court costs.

185. 10 Del. C. § 8601(b). For a listing of court costs, see Super. Ct. Cr. R. 58; Comm. Pls. Ct. Cr. R. 61.

186. 10 Del. C. § 8601(c).

187. 10 Del. C. § 8602(a).

188. 10 Del. C. § 8602(b).

© 2010  David L. Finger