State v. Battles

A trial court may reinstate an award of attorney fees following remand from an appeal, where Defendant did not contest them in the original appeal and offered no evidence the original award of the fees was plain error.

Defendant appealed a judgment of conviction for attempted murder, second-degree assault and unlawful use of a weapon, alleging the trial court plainly erred when it entered a judgment for $1,400.00 in court-appointed attorney fees without finding he had the ability to pay. Although the error was unpreserved on the record, and the State conceded the error, the Court declined to accept the State's concession and review the case. The procedural history revealed the case had been decided, appealed, remanded on grounds other than the attorney fees, decided for a second time, and appealed again, which is the appeal at issue here. The Court held the error was not plain because the trial court was reinstating the fee award that had been previously imposed prior to Defendant's appeal of the original judgment, and Defendant did not challenge the validity of the fee when he appealed the original judgment, and also because Defendant offered no evidence to establish plain error in the trial court's original award of the attorney fees. Affirmed.