Ability to Pay

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State Statute Description/Statute Name Statutory language Level of offense Definition of ability to pay Timeline Burden of proof Method of determination Mandatory Remedies if unable to pay
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South Dakota S.D. Codified Laws § 23A-3-28 Service of motion -- Fee

When a defendant or arrested person makes a motion under this section, the defendant or arrested person shall pay to the clerk of courts in the county where the motion

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is filed a fee equal to the filing fee for a civil action. If the defendant or arrested person establishes to the court’s satisfaction that the person is indigent and unable to pay the fee, the court may waive the filing fee.

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Indigent

Not provided for Not provided for Other No

Waive filing fee

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South Dakota S.D. Codified Laws § 24-2-28 Liability of inmate for cost of confinement — Exception

Each inmate under the jurisdiction of the Department of Corrections is liable for the cost of the inmate’s confinement which includes room and board charges; medical, dental, optometric, and psychiatric

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services charges; vocational education training; and alcoholism treatment charges.

However, if the secretary of corrections determines after considering the net income, net worth, number of dependents, and any existing obligations of the inmate, that the inmate is unable to pay, the secretary may waive all or part of the payment for the costs of the inmate’s confinement.

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Net income, net worth, number of dependents, and any existing obligations of the inmate.

Not provided for Not provided for Other No

Waive all or part of costs for confinement

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South Dakota S.D. Codified Laws § 24-11-32.1 Work release inmate — Restitution for prisoner maintenance cost

The board of county commissioners may require by resolution that a sum not to exceed the average daily prisoner cost may be charged to work release inmates of county jails

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as restitution to be applied toward prisoner maintenance cost, including but not limited to, room and board. In instances of undue hardship, the commissioners may reduce or waive the charges.

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Undue hardship

Not provided for Not provided for Other No

Reduce or waive charges

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South Dakota S.D. Codified Laws § 24-11-45 Prisoner liable for costs of confinement — Waiver

A prisoner confined to any jail while serving a sentence is liable for the cost of the prisoner’s confinement including room and board charges; medical, dental, optometric, and psychiatric services

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charges; vocational education training; chemical dependency treatment charges; and transportation costs as set forth in subdivision 7-12-18(4), where transporting the prisoner is required. If, after considering the prisoner’s net income, net worth, number of dependents, and any existing obligations, the judge who sentenced the prisoner to jail determines that the prisoner is unable to pay the full amount at one time, the judge may allow the prisoner to set up a deferred payment plan for payment for the costs of the inmate’s confinement or waive all or part of the payment if the prisoner demonstrates an inability to pay.

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Prisoner's net income, net worth, number of dependents, and any existing obligations

Not provided for Not provided for Other No

Waive all or part of costs for confinement

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South Dakota S.D. Codified Laws § 16-2-29.2; S.D. Codified Laws § 16-2-29.3 Waiver of filing fees and service costs--Motion to court; Waiver of filing fees--Affidavit of inability to pay

29.2: A court may waive the payment of filing fees and service costs accruing by reason of a civil action or proceeding or any criminal proceeding on motion to the

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court upon the affidavit of the moving party and the entry of an order thereon.

29.3: The affidavit required by § 16-2-29.2 of the moving party shall state the moving party's inability to pay; the nature of the action, proceeding, or appeal; and a short concise statement of facts upon which the moving party believes he is entitled to redress.

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N/A

Not provided for Burden on defendant to show inability to pay Other No

Fee is waived.

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South Dakota S.D. Codified Laws § 23A-28-3 Plan of restitution--Present inability to make restitution--No pecuniary damages suffered--Hearing--Condition of parole

If the sentencing court orders the defendant to the county jail, suspended imposition of sentence, suspended sentence, or probation, the court may require as a condition that the defendant, in

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cooperation with the court services officer assigned to the defendant, promptly prepare a plan of restitution, including the name and address of each victim, a specific amount of restitution to each victim, and a schedule of restitution payments. If the defendant is presently unable to make any restitution, but there is a reasonable possibility that the defendant may be able to do so at some time during the defendant's probation period, the plan of restitution shall also state the conditions under which or the event after which the defendant will make restitution. If the defendant believes that no person suffered pecuniary damages as a result of the defendant's criminal activities, the defendant shall so state. If the defendant contests the amount of restitution recommended by the court services officer, the defendant is entitled to a hearing at which the court shall determine the amount. If the sentencing court orders the defendant to the state penitentiary and does not suspend the sentence, the court shall set forth in the judgment the names and specific amount of restitution owed each victim. The Department of Corrections shall establish the collection schedule for court-ordered restitution while the defendant is in the penitentiary and on parole. The Board of Pardons and Paroles shall require, as a condition of parole, that the defendant pay restitution ordered by the court.

All Not provided for Before imposition of fine or fee Not provided for Administrative decision No

Payment plan/delay start of payments until later date.

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South Dakota S.D. Codified Laws § 16-2-42 Waiver of surcharge--Conditions

The surcharge provided for in § 16-2-39 may be waived in the manner provided for in §§ 16-2-29.2 to 16-2-29.4, inclusive. If a fine is suspended in whole or in part, the

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surcharge provided for in § 16-2-41 may not be reduced. However, the judge may waive all or any part of the payment of the surcharge which would work a hardship on the person convicted or on his immediate family.

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Hardship on the person convicted or on his immediate family

Not provided for Not provided for Other No

Fee is waived in amount determined.

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South Dakota S.D. Codified Laws § 23A-40-6 Arrest or detention without formal charge--Assignment of counsel--Certification of indigency required

In any criminal investigation or in any criminal action or action for revocation of suspended sentence or probation in the circuit or magistrate court or in a final proceeding to

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revoke a parole, if it is satisfactorily shown that the defendant or detained person does not have sufficient money, credit, or property to employ counsel and pay for the necessary expenses of his representation, the judge of the circuit court or the magistrate shall, upon the request of the defendant, assign, at any time following arrest or commencement of detention without formal charges, counsel for his representation, who shall appear for and defend the accused upon the charge against him, or take other proper legal action to protect the rights of the person detained without formal charge.
In each case, the indigent person, subject to the penalties for perjury, shall certify in writing or by other record such material factors relating to his ability to pay as the court prescribes.

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Does not have sufficient money, credit, or property to employ counsel and pay for the necessary expenses of his representation; indigdent.

Not provided for Burden on defendant to show inability to pay Not provided for No

Assign counsel

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South Dakota S.D. Codified Laws § 223A-27-25.5 Hearing required prior to imprisonment or jailing for failure to pay fine, costs, and restitution--Burden of proof--Computation of time to be served

No defendant may be imprisoned or jailed for failure to pay a fine, costs, or restitution or have any suspended prison or jail sentence revoked without a prior hearing. At

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the hearing, the defendant has the burden of proof to establish to the reasonable satisfaction of the magistrate or circuit judge that the defendant did not willfully fail to pay the fine, costs, or restitution or that the defendant did make a bona fide effort to pay the fine, costs, or restitution.
Failure by the defendant to make such a showing is grounds for being imprisoned or jailed. If the sentence provided for payment of fine or costs only, the term of jail or imprisonment may be no longer than the number of days equal to the total amount of the fine or costs imposed divided by sixty. For purposes of making this computation, any fraction of less than one day shall be dropped from the term of imprisonment. In no event may such imprisonment for failure to pay the fine, costs, and restitution together with all other time served or to be served exceed the maximum allowed by statute.
If the defendant establishes that nonpayment was not willful or that the defendant did make a bona fide effort to pay, the defendant may not be imprisoned or jailed for nonpayment. The magistrate or circuit judge shall consider other alternatives which take into account the state's interest in punishment and deterrence.
The court shall make findings in its decision.

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Did not willfully fail to pay the fine, costs, or restitution or that the defendant did make a bona fide effort to pay the fine, costs, or restitution.

At enforcement of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing No

Cannot be imprisoned for default on payment.

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Virginia Va. Code Ann. § 19.2-355 Petition of defendant
(a) In determining whether the defendant is unable to pay such fine forthwith, the court may require such defendant to file a petition, under oath, with the court, upon a
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form provided by the court, setting forth the financial condition of the defendant. (b) Such form shall be a questionnaire, and shall include, but shall not be limited to: the name and residence of the defendant; his occupation, if any; his family status and the number of persons dependent upon him; his monthly income; whether or not his dependents are employed and, if so, their approximate monthly income; his banking accounts, if any; real estate owned by the defendant, or any interest he may have in real estate; income produced therefrom; any independent income accruing to the defendant; tangible and intangible personal property owned by the defendant, or in which he may have an interest; and a statement listing the approximate indebtedness of the defendant to other persons. Such form shall also include a payment plan of the defendant, if the court should exercise its discretion in permitting the payment of such fine and costs in installments or other conditions to be fixed by the court.
All Not provided for Before imposition of fine or fee Not provided for Not provided for No

permitting the payment of such fine and costs in installments or other conditions to be fixed by the court

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Virginia Va. Code Ann. § 19.2-358(C) Show cause hearing on default
B. Following the order to show cause or following a capias issued for a defendant's failure to comply with a court order to appear issued pursuant to subsection A of
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§ 19.2-354, unless the defendant shows that his default was not attributable to an intentional refusal to obey the sentence of the court, or not attributable to a failure on his part to make a good faith effort to obtain the necessary funds for payment, or unless the defendant shows that any failure to appear was not attributable to an intentional refusal to obey the order of the court, the court may order the defendant confined as for a contempt for a term not to exceed sixty days or impose a fine not to exceed $500. The court may provide in its order that payment or satisfaction of the amounts in default at any time will entitle the defendant to his release from such confinement or, after entering the order, may at any time reduce the sentence for good cause shown, including payment or satisfaction of such amounts. C. If it appears that the default is excusable under the standards set forth in subsection B hereof, the court may enter an order allowing the defendant additional time for payment, reducing the amount due or of each installment, or remitting the unpaid portion in whole or in part.
All Not provided for At enforcement of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing No

additional time for payment, reducing the amount due or of each installment, or remitting the unpaid portion in whole or in part

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Virginia Va. Code Ann. § 19.2-363 Authority of Governor to grant relief from fines and penalties in case of deceased defendant
provided, that when the party against whom the fine or penalty has been imposed and judgment rendered therefor has departed this life leaving a spouse or children surviving, the Governor
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may remit such fine or penalty upon the certificate of the judge of the circuit court of the county or city wherein such fine or penalty was imposed and judgment rendered, that to enforce the same against the estate, real or personal, of the decedent, would impose hardship upon the spouse or children
All

would impose hardship upon the spouse or children

At defendant's request at enforcement Not provided for Determined by judge after hearing No

remittance

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Virginia Va. Code Ann. § 18.2-271.1(B) Waiver of fee - indigency Upon a positive finding that the defendant is indigent, the court may reduce or waive the fee. All

Indigence

Not provided for Not provided for Not provided for No

waiver of fee

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Wyoming Wyo. Stat. Ann. § 7-11-402(a) Subpoena of witnesses for indigent defendants

(a) Upon application of a defendant and upon a satisfactory showing that the defendant is financially unable to pay the fees of a witness and that the presence of the

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witness is necessary to an adequate defense, the court shall order that a subpoena be issued for service on a named witness and order that all fees and costs incurred be paid as provided by subsection (b) of this section.

(b) If the court orders a subpoena to be issued under this section, the costs incurred and the fees of the witness so subpoenaed shall be paid by the public defender's office.

All Not provided for At enforcement of fine or fee Not provided for Determined by judge without hearing No

Fees of the witness so subpoenaed shall be paid by the public defender's office

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Wyoming Wyo. Stat. Ann. § 7-11-506 Trial transcript for indigent prisoner upon appeal

Any person sentenced to imprisonment in a state penal institution, who appeals to the supreme court, may file, in the court in which that person was convicted, a petition requesting

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that the person be furnished with a stenographic transcript of the proceedings at that person's trial. The petition shall be verified by the petitioner and shall state facts showing that at the time of conviction and at the time of filing the petition that person was without financial means to pay for the transcript. If the judge who imposed sentence, or any other judge of the court, finds that the defendant is without financial means with which to obtain the transcript of the proceedings at trial, the judge shall order the reporter to transcribe an original and copy of the reporter's notes. The original of the transcript shall be filed with the clerk and the copy shall be delivered to the defendant without charge. The reporter's fees for preparation of the transcript shall be the same as those prescribed in W.S. 5 3 410, and shall be paid by the county in which the conviction is had.

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Without financial means with which to obtain the transcript

At defendant's request before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge without hearing No

Copy of original transcript delivered to the defendant without charge

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Wyoming Wyo. Stat. Ann. § 7-16-204(b) Representation of needy persons

(b) Appointed counsel, services and facilities necessary for representation, and court costs shall be provided at public expense to the extent that the person, at the time the court determines

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need, is unable to provide for their payment.

All

Not provided for

Before imposition of fine or fee Not provided for Determined by judge without hearing No

Appointed counsel, services and facilities necessary for representation, and court costs shall be provided at public expense

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Wyoming Wyo. Stat. Ann. § 14-6-235(c)-(d) Fees, costs and expenses

(c) Legal services rendered to a child for his benefit and protection are necessities which the child's parents or any person obligated by law for the child's support may be

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held responsible. In every case in which a guardian ad litem has been appointed to represent the child under W.S. 14-6-216 or in which counsel has been appointed under W.S. 14-6-222 to represent the child, the child's parents, guardian or other person responsible for the child's support, the court shall determine whether the child, the child's parents, guardian or other person responsible for the child's support is able to pay part or all of the costs of representation and shall enter specific findings on the record. If the court determines that any of the parties is able to pay any amount as reimbursement for costs of representation, the court shall order reimbursement or shall state on the record the reasons why reimbursement was not ordered. The court may also in any case order that all or any part of the costs and expenses enumerated in paragraphs (b)(i), (iii), (iv) and (vii) of this section, be reimbursed to the county by the child, his parents or any person legally obligated for his support, or any of them jointly and severally, upon terms the court may direct. An order for reimbursement of costs made pursuant to this subsection may be enforced as provided in W.S. 14-6-236. Any reimbursement ordered for guardian ad litem services provided pursuant to W.S. 14-12-101 through 14-12-104 shall be apportioned between the county and the guardian ad litem program in accordance with payments made for those services.


(d) The department of family services shall promulgate rules and regulations establishing a standard fee schedule for probation services provided under this act. In every case in which a child has been placed on probation under W.S. 14-6-229(d), the court shall determine whether the child, the child's parents, guardian or other person legally obligated for the child's support is able to pay part or all of the expenses of probation determined in accordance with the department's fee schedule and shall enter specific findings on the record. If the court determines that any of the parties is able to pay any amount as reimbursement for expenses of probation, the court shall order reimbursement by any or all of the parties, jointly and severally, or shall state on the record the reasons why reimbursement was not ordered. An order for reimbursement of expenses made pursuant to this subsection may be enforced as provided in W.S. 14-6-236.

All Not provided for At enforcement of fine or fee Not provided for Determined by judge without hearing No

Reimbursement for costs of representation; reimbursement for expenses of probation.

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Wyoming Wyo. R. Crim. P. 44(b),(d) Right to Assignment of Counsel

(b) Procedure. The procedures for implementing the right set out in subdivision (a) shall be those provided by W.S. 7-6-101 et seq. and by these rules. The appointment of counsel

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for delinquency cases is governed by W.S. 14-6-222 and, fees, costs and expenses for delinquency cases are governed by W.S. 14-6-235.
(1) The determination of a defendant's eligibility for appointed counsel is a judicial function. An attorney should be appointed at the earliest time after a defendant makes a request, but only after appropriate inquiry into the defendant's financial circumstances and a determination of eligibility.
(2) A defendant requesting appointed counsel must submit a financial affidavit or provide sworn testimony on the record detailing income, expenses, assets and liabilities and may be required to update the affidavit or testimony from time to time.
(3) The judicial officer shall advise any defendant who has requested appointed counsel that, to the extent of ability to do so, the defendant will be required to contribute to the cost of representation. At the time counsel is appointed, the judicial officer shall determine the defendant's ability to make monthly or other periodic payments and require the defendant to make such payments to the clerk of the court as a condition of the appointment.
(4) If at any time after appointment it appears to a judicial officer that a defendant is financially able to make payment, in whole or in part, for legal services, the judicial officer shall require such payments or terminate the appointment.
(5) A separate order of appointment shall be entered as part of the record by the court for each defendant.
(6) After a hearing, a judicial officer may permit a defendant to withdraw a request for appointed counsel.
(7) If appointed counsel obtains information that a client is financially able to make payment in whole or in part for legal services in connection with his or her representation and the source of the attorney's information is not protected as a privileged communication, counsel shall advise the court and ask that the person be required to contribute to the cost of representation or that the appointment be terminated.
(8) Appointed counsel shall represent the defendant at every stage from initial appearance through appeal; however, the appellate section of the public defender's office may be substituted for trial counsel to handle an appeal.


(d) Rules establishing standard of indigency. Rule 44(d) is adopted as required by W.S. 7-6-103(c). A person is entitled to the appointment of counsel if, at the time counsel is needed, the person is unable to provide for the full payment of an attorney and all other necessary expenses of representation. In making a determination of eligibility, the judicial officer shall consider:
(1) The probable cost of representation given the number and severity of the offenses charged and the factual and legal complexity of the case.
(2) The defendant's income from all sources and the defendant's capacity to earn income.
(3) The expenses of the defendant's household and whether a spouse or roommate contributes or ought to contribute to those expenses.
(4) The defendant's responsibility for the support of others.
(5) The defendant's assets whether held individually or with others.
(6) The defendant's debts and the periodic payments due on the debts.
(7) The defendant's capacity to borrow money.
Uncertainty as to a defendant's eligibility for appointed counsel should be resolved in the defendant's favor. An erroneous determination of eligibility may be corrected at any time.

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Indigency - A person is entitled to the appointment of counsel if, at the time counsel is needed, the person is unable to provide for the full payment of an

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attorney and all other necessary expenses of representation. In making a determination of eligibility, the judicial officer shall consider:
(1) The probable cost of representation given the number and severity of the offenses charged and the factual and legal complexity of the case.
(2) The defendant's income from all sources and the defendant's capacity to earn income.
(3) The expenses of the defendant's household and whether a spouse or roommate contributes or ought to contribute to those expenses.
(4) The defendant's responsibility for the support of others.
(5) The defendant's assets whether held individually or with others.
(6) The defendant's debts and the periodic payments due on the debts.
(7) The defendant's capacity to borrow money.

At enforcement of fine or fee Burden on defendant to show inability to pay Determined by judge without hearing No

Counsel appointed