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Hardi v. Mezzanotte


ute permitted an assessment of costs upon conviction. The court held that where the previous mistrial was "due solely to the jury's failure to agree upon a verdict," separate court costs were not encompassed within the provisions of the statute. Id. In reaching this conclusion, the court considered that: (1) levying such costs upon a criminal defendant "is a deprivation of property that may be imposed only in accordance with reasonable and narrowly defined standards;" (2) it would have the effect of penalizing a defendant for the government's failure of proof in the first case; and (3) it might have a deterrent effect on the right of the accused to plead not guilty and go to trial the second time. Id. at 1372. No similar statute or considerations are present here.

Moreover, in this case, there was no new presentation of the evidence, since the parties agreed to a second trial by the court based on the record of the testimony and evidence adduced at the first trial. Thus, the costs incurred for the first trial essentially were used to produce the evidence used again in the second trial. Appellee had not previously recovered the costs of the presentation upon which she later prevailed. Under these circumstances, the trial court could properly exercise its discretion to award these costs, which were necessary for the presentation of appellee's case. "An appellant contesting an award of costs 'bears the burden of convincing this court on appeal that the trial court erred . . . . the burden is even greater when the standard of review is abuse of discretion. '" Talley v. Varma, 689 A.2d 547, 555 (D.C. 1997) (quoting Robinson, supra, 455 A.2d at 1370).

Appellants filed in the trial court an opposition in response to appellee's bill of costs in which it attempted to meet this burden, and appellee filed a reply. With all this information before it, the trial court, with a full knowledge of the issues and arguments, rejected appellants' argument that the costs it awarded were not necessary to the presentation of appellee's medical malpractice action. Having reviewed the record related to the costs awarded, we conclude that appellants have failed to demonstrate that the trial court abused its discretion in this regard.

For the foregoing reasons, the judgment of the trial court hereby is


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