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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West Virginia W. Va. Code § 29-21-16(g)(1)-(4) Determination of maximum income levels; eligibility guidelines; use of form affidavit; inquiry by court; denial of services; repayment; limitation on remedies against affiant

(g) In the circumstances and manner set forth below, circuit judges may order repayment to the state, through the office of the clerk of the circuit court having jurisdiction over the

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proceedings, of the costs of representation provided under this article:

(1) In every case in which services are provided to an indigent person and an adverse judgment has been rendered against such person, the court may require that person, and in juvenile cases, may require the juvenile’s parents or custodian, to pay as costs the compensation of appointed counsel, the expenses of the defense, and any other fees and costs authorized by statute;

(2) The court shall not order a person to pay costs unless the person is able to pay without undue hardship. In determining the amount and method of repayment of costs, the court shall take account of the financial resources of the person, the person’s ability to pay, and the nature of the burden that payment of costs will impose. The fact that the court initially determines, at the time of a case’s conclusion, that it is not proper to order the repayment of costs does not preclude the court from subsequently ordering repayment if the person’s financial circumstances change;

(3) When a person is ordered to repay costs, the court may order payment to be made immediately or within a specified period of time or in specified installments. If a person is sentenced to a term of imprisonment, an order for repayment of costs is not enforceable during the period of imprisonment unless the court expressly finds, at the time of sentencing, that the person has sufficient assets to pay the amounts ordered to be paid or finds there is a reasonable likelihood the person will acquire the necessary assets in the foreseeable future;

(4) A person who has been ordered to repay costs, and who is not in contumacious default in the payment thereof, may at any time petition the sentencing court for modification of the repayment order. If it appears to the satisfaction of the court that continued payment of the amount ordered will impose undue hardship on the person or the person’s dependents, the court may modify the method or amount of payment;

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(2) The court shall not order a person to pay costs unless the person is able to pay without undue hardship. In determining the amount and method of repayment of

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costs, the court shall take account of the financial resources of the person, the person's ability to pay and the nature of the burden that payment of costs will impose. The fact that the court initially determines, at the time of a case's conclusion, that it is not proper to order the repayment of costs does not preclude the court from subsequently ordering repayment should the person's financial circumstances change.

Before imposition of fine or fee Not provided for Not provided for Yes

Court shall not order a person to pay costs; court may order payment to be made immediately or within a specified period of time or in specified installments; 

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West Virginia W. Va. Code § 62-5-10(a) Mandatory cost assessed upon conviction of a felony

Every circuit court shall assess, in every felony criminal matter as a cost to the defendant, an assessment in the sum of seventy-five dollars for each felony count of conviction.

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The assessment referred to herein shall be paid upon adjudication of guilt unless the court determines that the defendant is unable to pay in such a manner in which case payment of the assessment shall be paid prior to final disposition. If the circuit court determines that a defendant is financially unable to pay the assessment prior to final disposition, payment of the assessment shall be a mandatory condition of probation or parole.

Felony

Not provided for

Before imposition of fine or fee Not provided for Not provided for Yes

No payment prior to final disposition, however, payment shall be a mandatory condition of parole or probation.

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West Virginia W. Va. Code § 62-11A-1a Other sentencing alternatives

(e) A person sentenced under the provisions of this section may be required to pay the costs of his or her incarceration, including meal costs: Provided, That the judge or

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magistrate considers the person's ability to pay the costs.

All

Not provided for

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

May not be required to pay the costs of his or her incarceration, including meal costs.

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West Virginia W. Va. Code § 62-11B-5(7) Requirements for order for home incarceration

(7) A requirement that the offender pay a home incarceration fee set by the circuit court or magistrate. If a magistrate orders home incarceration for an offender, the magistrate shall follow

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a fee schedule established by the supervising circuit judge in setting the home incarceration fee. The magistrate or circuit judge shall consider the person’s ability to pay in determining the imposition and amount of the fee.

All

Not provided for

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

No fee or a lower fee

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West Virginia W. Va. Code § 62-11C-7(a) Supervision or participation fee

A circuit judge, magistrate, municipal court judge or community criminal justice board may require the payment of a supervision or participation fee from any person required to be supervised by

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or participate in a community corrections program. The circuit judge, magistrate, municipal court judge or community criminal justice board shall consider the person's ability to pay in determining the imposition and amount of the fee.

All

Not provided for

Before imposition of fine or fee Not provided for Not provided for Yes

No fee or lower fee

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West Virginia W. Va. Code § 62-11C-4(b)-(c) Special revenue account

(b) In addition to the fee required in section nine [§ 62-12-9], article twelve of this chapter, a fee not to exceed $35 per month, unless modified by legislative rule as

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provided in section three [§ 62-11C-3] of this article, is also to be collected from those persons on probation. This fee is to be based upon the person’s ability to pay. The magistrate or circuit judge shall conduct a hearing prior to imposition of probation and make a determination on the record that the offender is able to pay the fee without undue hardship. The magistrate clerk, deputy magistrate clerk, magistrate assistant, circuit clerk or deputy circuit clerk shall collect all fees imposed pursuant to this subsection and deposit them in a separate account. Within ten calendar days following the beginning of the calendar month, the magistrate clerk or circuit clerk shall forward the amount deposited to the State Treasurer to be credited to the West Virginia Community Corrections Fund.

(c) In addition to the fee required in section five, article eleven-b of this chapter, a fee of $2.50 per day, unless modified by legislative rule as provided in section three of this article, is to be collected from those persons on home incarceration. The circuit judge, magistrate or municipal court judge shall consider the person's ability to pay in determining the imposition of the fee. The circuit clerk, magistrate clerk, municipal court clerk or his or her designee shall collect all fees imposed pursuant to this subsection and deposit them in a separate account. Within ten calendar days following the beginning of the calendar month, the circuit clerk, magistrate clerk or municipal court clerk shall forward the amount deposited to the State Treasurer to be credited to the West Virginia Community Corrections Fund.

All

Not provided for

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

No fee or lower fee

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West Virginia W. Va. Code § 62-12-26 Extended supervision for certain sex offenders; sentencing; conditions; supervision provisions; supervision fee

(f) The sentencing court may, based upon defendant’s ability to pay, impose a supervision fee to offset the cost of supervision. Said fee shall not exceed $50 per month. Said fee

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may be modified periodically based upon the defendant’s ability to pay.

All

Not provided for

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

No fee or reduced fee; modification of fee.

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Wyoming Wyo. Stat. Ann. § 7-13-421(b),(d) Restitution as condition of parole.

(b) The board shall provide for restitution in the amount determined by the court pursuant to W.S. 7 9 103 unless the board finds the parolee is not reasonably capable

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of making the payments, in which case the board may modify the amount of restitution to be paid, taking into account the factors enumerated in W.S. 7 9 106.

(d) The board may waive the payment of some or all of the restitution as a condition of parole if it finds the payment of some or all of the restitution will work an undue hardship on the parolee or his family. Victims who have requested to receive notification pursuant to W.S. 1 40 204(f) of information authorized to be released pursuant to W.S. 1 40 204(d) shall be given notice and an opportunity to be heard prior to the board making a decision to waive some or all of the restitution under this subsection.

All

Parolee is not reasonably capable of making the payments; undue hardship on the parolee or his family

At enforcement of fine or fee Not provided for Administrative decision Yes

Modify the amount of restitution to be paid; waive all or some of restituion as condition of parole.

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Wyoming Wyo. Stat. Ann. § 7-9-102 Order to pay upon conviction

In addition to any other punishment prescribed by law the court shall, upon conviction for any misdemeanor or felony, order a defendant to pay restitution to each victim as determined

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under W.S. 7 9 103 and 7 9 114 unless the court specifically finds that the defendant has no ability to pay and that no reasonable probability exists that the defendant will have an ability to pay.

All

Not provided for

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

Restituion not ordered

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Wyoming Wyo. Stat. Ann. § 7-6-106 Determination of need; reimbursement for services

(a) The determination of whether a person covered by W.S. 7 6 104 is a needy person shall be deferred until his first appearance in court or in a suit

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for payment or reimbursement under W.S. 7 6 108, whichever occurs earlier. Thereafter, the court shall determine, with respect to each proceeding, whether he is a needy person. For purposes of this section, an appeal, probation revocation or proceeding to correct or modify a sentence is a separate proceeding. The determination of need shall be based on a separate application submitted at the time of each proceeding.

(b) In determining whether a person is a needy person and in determining the extent of his inability to pay, and, in the case of an unemancipated minor, the inability to pay of his custodial parent or another person who has a legal obligation of support, the court shall consider the standards set forth in Rule 44(d), Wyoming Rules of Criminal Procedure. Release on bail does not necessarily prevent a person from being determined to be needy. In each case the person, subject to the penalties for perjury, shall certify in writing, or by other record, the material factors relating to his ability to pay as the court prescribes.

(c) In every case in which a person has received services under W.S. 7 6 104, the presiding judge shall determine whether the person or, in the case of an unemancipated minor, his custodial parent or any other person who has a legal obligation of support, is able to provide any funds towards payment of part or all of the cost associated with such services. If the person or, in the case of an unemancipated minor, his custodial parent or any other person who has a legal obligation of support, is not able to provide any funds towards payment of costs, the court shall enter a specific finding on the record. If the court determines the person or, in the case of an unemancipated minor, his custodial parent or any other person who has a legal obligation of support, is able to provide any amount as reimbursement, the court shall order the person or, in the case of an unemancipated minor, his custodial parent or any other person who has a legal obligation of support, to reimburse the state for all or part of the costs of the services provided or shall state on the record the reasons why an order for reimbursement was not entered. Where a person is initially provided with counsel pursuant to W.S. 7 6 105(a), but subsequently retains private counsel, the court may order the person to reimburse the state for the services already provided. All reimbursements under this act shall be made through the clerk of court.

(d) The state public defender shall report in the agency's annual report concerning: (i) The number of cases by court in which an attorney was appointed to represent a person at public expense under this act during the preceding calendar quarter; (ii) For each case in which an attorney was appointed, whether the court ordered reimbursement under this section or, if reimbursement was not ordered, whether the court complied with subsection (c) of this section; (iii) For the guardian ad litem program, the number of cases, the amount of monies expended and the amounts of reimbursements from participating counties.

(e) If the court orders release on bail pending trial or appeal, probation before sentence, suspended sentence or probation, the court shall order the needy person as a condition of bail, sentence or probation to repay the state for expenses and services provided by appointed attorneys pursuant to the state public defender's standard fee schedule if the court determines the defendant has an ability to pay or that a reasonable probability exists that the defendant will have an ability to pay.

All

Wyo. R. Crim. P. 44(d): 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

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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.

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

N/A

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Wyoming Wyo. Stat. Ann. § 7-9-103(c) Determination of amount owed; execution

The court shall order the defendant to pay all or part of the restitution claimed or shall state on the record specific reasons why an order for restitution was not

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entered. If the court determines that the defendant has no ability to pay and that no reasonable probability exists that the defendant will have an ability to pay in the future, the court shall enter specific findings in the record supporting its determination.

All Not provided for Before imposition of fine or fee Not provided for Determined by judge without hearing Yes Not provided for
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Wyoming Wyo. Stat. Ann. § 7-11-505 Payment of costs of prosecution

Payment of the costs of prosecution may be added to and made a part of the sentence in any felony or misdemeanor case if the court determines that the defendant

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has an ability to pay or that a reasonable probability exists that the defendant will have an ability to pay.

All

Not provided for

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

Payment of the costs of prosecution not added to and made a part of the sentence in any felony or misdemeanor case

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Wyoming Wyo. Stat. Ann. § 7-13-109(a) Payment of jail costs by inmate

(a) In addition to any other punishment prescribed by law, the sentencing court may require a person sentenced to confinement in county jail, for any offense, to pay the jail

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facility the costs of room and board for each day of incarceration, both before and after conviction. The costs for room and board for each day of incarceration shall be an amount equal to the actual cost of the services as determined by the county sheriff. The cost of the services shall be paid to all jail facilities where the inmate may have been held before and after conviction. The costs shall not be assessed if:

(i) The court finds that the defendant has no ability to pay and that no reasonable probability exists that the defendant will have an ability to pay; or

(ii) In the judgment of the court, the costs would impose a manifest hardship on the inmate, or the property of the inmate is needed for the maintenance and support of the inmate's family.

All

Costs would impose a manifest hardship on the inmate, or the property of the inmate is needed for the maintenance and support of the inmate's family

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

Costs for room and board for each day of incarceration not imposed.

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Wyoming Wyo. Stat. Ann. § 7-13-1301(a)(iv) Definitions

(iv) "Qualified offender" means a person convicted of a felony whom the court finds has a need for alcohol or other drug treatment. The payment amount required of the offender

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for treatment shall be based on the ability of the offender to pay as established on a sliding fee scale pursuant to rules and regulations adopted by the department of health and may, at the discretion of the court, be paid through delayed or installment payments. In determining an offender's ability to pay the court may consider present circumstances as well as reasonable future potential;

Felony

Not provided for (court may consider present circumstances as well as reasonable future potential).

Not provided for Not provided for Determined by judge without hearing Yes

Fee imposed based on sliding fee scale pursuant to rules and regulations adopted by the department of health; installment payments.

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Wyoming Wyo. Stat. Ann. § 5-6-202(b) Powers and duties of municipal judge generally; court to open every day except Sunday

(b) The municipal judge shall enforce due obedience to all orders, rules and judgments made by him. The judge has the same power as the district court in the issuance

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of warrant, search warrant, subpoena or other necessary process and may fine or imprison for contempt offered to him or to process issued by him in the same manner and to the same extent as the district court. Before any person is imprisoned for the willful refusal to pay a fine, the court shall determine whether the defendant has an ability to pay or that a reasonable probability exists that the defendant will have an ability to pay.

All

Not provided for

At enforcement of fine or fee Not provided for Determined by judge without hearing Yes

Cannot imprison  for the willful refusal to pay a fine

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Wyoming Wyo. Stat. Ann. § 5-6-301(b) Punishment of persons convicted before judge; maximum penalty permitted; power to punish for contempt.

(b) The municipal judge shall punish for contempt in the same manner as district court. Before any person is imprisoned for the willful refusal to pay a fine, the court

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shall determine whether the defendant has an ability to pay or that a reasonable probability exists that the defendant will have an ability to pay.

All

Not provided for

At enforcement of fine or fee Not provided for Determined by judge without hearing Yes

Cannot imprison for the willful refusal to pay a fine.

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Wyoming Wyo. Stat. Ann. § 6-10-105 Commitment for refusal to pay fine or costs; rate per day

A person committed to jail for willfully refusing to pay a fine or costs may be imprisoned if the court determines that the defendant has an ability to pay or

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that a reasonable probability exists that the defendant will have an ability to pay, until the imprisonment, at the rate of fifteen dollars ($15.00) per day, equals the amount of the fine or costs, or the amount shall be paid or secured to be paid when he is discharged.

All

Not provided for

At enforcement of fine or fee Not provided for Determined by judge without hearing Yes

Cannot imprison for failure to pay fine.

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Wyoming Wyo. Stat. Ann. § 1-40-119(c) Surcharge to be assessed in certain criminal cases; paid to account

Under no circumstances shall a court fail to impose the surcharge required by subsections (a) and (b) of this section if the court determines the defendant has an ability to

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pay or that a reasonable probability exists that the defendant will have an ability to pay.

All

Not provided for

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

Surcharge not imposed

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Wyoming Wyo. Stat. Ann. § 7-13-1616 Surcharge to be assessed in certain criminal cases; paid to account Currentness

(c) The court may waive the surcharge if the person is unable to pay the surcharge or for any other good cause shown. The court shall consider all other financial

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obligations imposed on the defendant and set the surcharge so as not to create an undue financial burden on the defendant.

All

Undue financial burden on the defendant

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

Surcharge waiver, modification of surcharge.

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West Virginia W. Va. Code § 62-12-9(a)(5)-(6), (b)(1)-(2) Conditions of release on probation

(a) Release on probation is conditioned upon the following: (5) That the probationer pay a fee, not to exceed $20 per month, to defray costs of supervision: Provided, That the court

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conducts a hearing prior to imposition of probation and makes a determination on the record that the offender is able to pay the fee without undue hardship. All moneys collected as fees from probationers pursuant to this subdivision shall be deposited with the circuit clerk who shall, on a monthly basis, remit the moneys collected to the State Treasurer for deposit in the State General Revenue Fund; and (6) That the probationer is required to pay the fee described in section four [§ 62-11C-4], article eleven-c of this chapter: Provided, That the court conducts a hearing prior to imposition of probation and makes a determination on the record that the offender is able to pay the fee without undue hardship.

(b) In addition, the court may impose, subject to modification at any time, any other conditions which it may determine advisable, including, but not limited to, any of the following: (1) That the probationer make restitution or reparation, in whole or in part, immediately or within the period of probation, to any party injured by the crime for which he or she has been convicted: Provided, That the court conducts a hearing prior to imposition of probation and makes a determination on the record that the offender is able to pay restitution without undue hardship; (2) That the probationer pays any fine assessed and the costs of the proceeding in installments directed by the court: Provided, That the court conducts a hearing prior to imposition of probation and makes a determination on the record that the offender is able to pay the costs without undue hardship.

All

Pay the fee without undue hardship

Before imposition of fine or fee Not provided for Determined by judge after hearing Yes

No fee or reduced fee