The state’s Court of Appeals has reversed the $67 charge a Pueblo County judge imposed on a criminal defendant, even though prosecutors had dismissed the case against him.

A three-judge panel for the appellate court agreed state law did not allow District Court Judge Thomas Flesher to order such payment from Benjamin Franklin Sanchez, even if Sanchez’s plea agreement may have permitted it.

“(I)t does not matter if, as the prosecution urges, Sanchez had agreed to pay the costs of prosecution for any and all counts dismissed under the plea bargain. Such an agreement would be void,” wrote Judge John Daniel Dailey in a Nov. 10 opinion.

Sanchez was in jail for allegations of sexual assault when prosecutors charged him separately with witness tampering for attempting to influence his victim from the jail. In exchange for the dismissal of the witness tampering charge, Sanchez agreed to plead guilty to a count of conspiracy. As part of the agreement, the prosecution also dismissed the sexual assault case.

Dismissed charges, the agreement stipulated, “will be considered for sentencing and restitution purposes.”

The Pueblo County District Attorney’s Office requested Sanchez pay $67 to reflect a fee the prosecution had incurred for an expert witness in the sexual assault case. Sanchez objected, but Flesher believed the law permitted him to impose the charge in light of Sanchez’s plea agreement.

On appeal, Sanchez argued that due process under the law forbids judges from ordering defendants to pay the prosecution’s costs when a case has been dismissed. The government countered that the clear terms of the plea agreement allowed for such payments.

The Court of Appeals recognized state law only requires a defendant to pay the costs of his prosecution for the counts on which he is convicted. Similarly, judges may not order restitution payments to victims for charged conduct that does not result in a conviction.

Although defendants may agree to pay restitution for dismissed charges as part of a plea agreement, decades-old precedent from the Colorado Supreme Court has held that when it comes to the prosecution’s costs, state law – and not a plea agreement – dictates whether a defendant must pay.

“Because the statute does not authorize the imposition of costs of prosecution for dismissed counts, and a defendant may not agree otherwise, the trial court erred in imposing the costs of prosecuting the dismissed counts in the other case,” Dailey wrote.

At the same time it reversed the $67 fee, the panel upheld another $428.50 in court costs that Flesher imposed on Sanchez.

The case is People v. Sanchez.