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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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.

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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.

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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. § 7-11-402(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. § 7-11-505 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.

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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.

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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.

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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.

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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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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.

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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