
    545 P.2d 45
    Moise BERGER, Maricopa County Attorney, Petitioner, v. The Honorable C. Kimball ROSE, Judge of the Superior Court, Respondent, and Marvin W. MANROSS, Michael A. Miller, and William H. Feldhacker, Real Parties in Interest, Respondents.
    No. 12442.
    Supreme Court of Arizona, En Bane.
    Jan. 28, 1976.
    Albert I. Firestein, Phoenix, for petitioner.
    Richard L. Thompson, Phoenix, for respondent Manross.
    Michael A. Miller, in pro. per.
    William H. Feldhacker, in pro. per.
   HAYS, Justice.

This matter came to us as a special action pursuant to the Rules of Procedure for Special Actions, A.R.S. 17A. A criminal complaint was filed against four defendants, and a preliminary hearing was commenced in the Tolleson Justice of the Peace Court. Before the state had completed its presentation of evidence, the justice of the peace dismissed the charges against defendants. The county attorney thereafter filed a special action in Superior Court which was heard by the Honorable C. Kimball Rose.

At the hearing on the special action, the judge appointed the respondents, Manross, Miller and Feldhacker, to represent the defendants in that proceeding; they had previously represented the defendants in the preliminary hearing. After hearing arguments the court entered the following order which among other things contained:

“IT IS ORDERED, as to all defendants dismissing this cause with prejudice
“As to costs,
“IT IS ORDERED that costs in this matter be assessed against the county attorney; said costs being the costs of appointed counsel.”

Thereafter, the court entered an order directing that the attorneys be paid out of the budget of the county attorney. The county attorney filed this action contending that the court lacked authority to appoint counsel for defendants in a special action, and further the court had no authority to direct that costs or attorney fees be paid out of the county attorney’s budget.

A.R.S. § 13-1673 indicates that counsel may be appointed in “a criminal proceeding or insanity hearing.” In a technical sense, a special action may be characterized as a civil proceeding, but it is obvious here that the special action in this instance concerns a “custodial proceeding” which requires the appointment of counsel for indigent defendants. Alexander v. Deddens, 106 Ariz. 172, 472 P.2d 41 (1970).

With regard to the final point raised by the county attorney, we note that Rule 7, Rules of Procedure for Special Actions, A.R.S. 17A, provides:

“(e) The provisions of A.R.S. § 12-2106 on damages for frivolous appeals or appeals for delay apply to special actions.”

In assessing costs, the court apparently considered the special action filed by the county attorney in the Superior Court to be a frivolous action. However, the language of § 12-2106 indicates that it applies to appellate courts only and we so hold. The assessment of costs or other penalty against the budget of the county attorney was in this instance beyond the jurisdiction of the Superior Court. We hold, however, that the appointment of counsel and subsequent payment of attorney’s fees by the county from an appropriate fund is proper.

Remanded for proceedings consistent with this opinion.

CAMERON, C. J., STRUCKMEYER, V. C. J., and HOLOHAN and GORDON, JJ., concur.  