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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New York N.Y. Penal Law § 80.00 Fine for felony
When imposing a fine pursuant to the provisions of this paragraph, the court shall consider the profit gained by defendant's conduct, whether the amount of the fine is disproportionate to
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the conduct in which defendant engaged, its impact on any victims, and defendant's economic circumstances, including the defendant's ability to pay, the effect of the fine upon his or her immediate family or any other persons to whom the defendant owes an obligation of support.
Felony Not provided for Before imposition of fine or fee Not provided for Not provided for Yes

Not specified

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New York N.Y. Correct. Law § 201(9) Authority and responsibility for community supervision
The department shall waive all or part of such fee where, because of the indigence of the offender, the payment of said fee would work an unreasonable hardship on the
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person convicted, his or her immediate family, or any other person who is dependent on such person for financial support.
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payment of said fee would work an unreasonable hardship on the person convicted, his or her immediate family, or any other person who is dependent on such person for financial

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support.

Not provided for Not provided for Not provided for Yes

Waiver of fee

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New York N.Y. Exec. Law § 257-c Probation administrative fee
The department shall waive all or part of such fee where, because of the indigence of the offender, the payment of said surcharge would work an unreasonable hardship on the
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person convicted, his or her immediate family, or any other person who is dependent on such person for financial support.
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payment of said surcharge would work an unreasonable hardship on the person convicted, his or her immediate family, or any other person who is dependent on such person for financial

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support.

Not provided for Not provided for Not provided for Yes

Waiver of fee

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New York N.Y. Correct. Law § 189(2) Disposition of moneys paid to prisoner for his labor
The commissioner shall waive the collection of such fee where it is determined that the payment of the fee would work an unreasonable hardship on the prisoner or his or
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her immediate family.
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payment of the fee would work an unreasonable hardship on the prisoner or his or her immediate family.

Not provided for Not provided for Not provided for Yes

Waiver of fee

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New York N.Y. Veh. & Traf. Law § 1198(5) Installation and operation of ignition interlock devices
The cost of installing and maintaining the ignition interlock device shall be borne by the person subject to such condition unless the court determines such person is financially unable to
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afford such cost whereupon such cost may be imposed pursuant to a payment plan or waived
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the court determines such person is financially unable to afford such cost

Not provided for Not provided for Not provided for No

Waiver or payment plan

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New York N.Y. Crim. Proc. Law § 420.30 Remission of fines, restitution or reparation
a court may waive the crime victim assistance fee if such defendant is an eligible youth as defined in subdivision two of section 720.10 of this chapter, and the imposition of such
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fee would work an unreasonable hardship on the defendant, his or her immediate family, or any other person who is dependent on such defendant for financial support.
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imposition of such fee would work an unreasonable hardship on the defendant, his or her immediate family, or any other person who is dependent on such defendant for financial support.

Not provided for Not provided for Not provided for No

Waiver of fee

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New York N.Y. Crim. Proc. Law § 420.35 Mandatory surcharge and crime victim assistance fee; applicability to sentences mandating payment of fines
When the court directs that the defendant be imprisoned until the mandatory surcharge, sex offender registration fee or DNA databank fee is satisfied, it must specify a maximum period of
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imprisonment not to exceed fifteen days; provided, however, a court may not direct that a defendant be imprisoned until the mandatory surcharge, sex offender registration fee, or DNA databank fee is satisfied or otherwise for failure to pay the mandatory surcharge, sex offender registration fee or DNA databank fee unless the court makes a contemporaneous finding on the record, after according defendant notice and an opportunity to be heard, that the payment of the mandatory surcharge, sex offender registration fee or DNA databank fee upon defendant will not work an unreasonable hardship upon him or her or his or her immediate family.
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unreasonable hardship upon defendant or defendant's immediate family

Not provided for Not provided for Not provided for Yes

Waiver of fee

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New York N.Y. Crim. Proc. Law § 420.40 Deferral of a mandatory surcharge; financial hardship hearings
On an appearance date set forth in a summons issued pursuant to subdivision three of section 60.35 of the penal law, section eighteen hundred nine of the vehicle and traffic
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law or section 27.12 of the parks, recreation and historic preservation law, a person upon whom a mandatory surcharge, sex offender registration fee or DNA databank fee was levied shall have an opportunity to present on the record credible and verifiable information establishing that the mandatory surcharge, sex offender registration fee or DNA databank fee should be deferred, in whole or in part, because, due to the indigence of such person the payment of said surcharge, sex offender registration fee or DNA databank fee would work an unreasonable hardship on the person or his or her immediate family.
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an unreasonable hardship on the person or his or her immediate family

At defendant's request at enforcement Burden on defendant to show inability to pay Determined by judge after hearing No

Deferral

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Georgia Ga. Code Ann. § 17-12-51 Repayment of Attorney's Fees as a Condition of Probation

(a)  When a defendant who is represented by a public defender, who is paid in part or in whole by a county, enters a plea of nolo contendere, first offender, or

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guilty or is otherwise convicted, the court may impose as a condition of probation repayment of all or a portion of the cost for providing legal representation and other expenses of the defense if the payment does not impose a financial hardship upon the defendant or the defendant's dependent or dependents. The defendant shall make the payment through the community supervision officer to the county; (b)  When a defendant who is represented by a public defender, who is paid in part or in whole by a municipality, enters a plea of nolo contendere, first offender, or guilty or is otherwise convicted, the court may impose as a condition of probation repayment of all or a portion of the cost for providing legal representation and other expenses of the defense if the payment does not impose a financial hardship upon the defendant or the defendant's dependent or dependents. The defendant shall make the payment through the community supervision officer to the municipality; (c)  If a defendant who is represented by a public defender, who is paid for entirely by the state, enters a plea of nolo contendere, first offender, or guilty or is otherwise convicted, the court may impose as a condition of probation repayment of all or a portion of the cost for providing legal representation and other costs of the defense if the payment does not impose a financial hardship upon such defendant or such defendant's dependent or dependents. Such defendant shall make such payment through the community supervision officer to the Georgia Public Defender Council for payment to the general fund of the state treasury; (d)  In determining whether or not a payment imposed under this Code section imposes a financial hardship upon a defendant or defendant's dependent or dependents and in determining the amount of the payment to impose, the court shall consider the factors set forth in Code Section 17-14-10. The public defender may provide the court with an estimate of the cost for providing to the defendant the legal representation and other expenses of the defense. If requested by the defendant, the court shall hold a hearing to determine the amount to be paid; (e)  This Code section shall not apply to a disposition involving a child pursuant to Chapter 11 of Title 15, relating to juvenile proceedings.

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"Payment does not impose a financial hardship upon the defendant or the defendant's dependent or dependents;" Definition of "impose financial hardship found in Ga. Code Ann. § 17-14-10.

Not provided for Not provided for Not provided for No Not provided for
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Georgia Ga. Code Ann. § 17-14-5(e) Restitution by Juvenile Delinquent; Retention of Jurisdiction to Enforce Order Against Juvenile After Attainment of Age 21; Transfer of Enforcement Jurisdiction; Parent's Obligation for Restitution

If the court determines that a juvenile is or will be unable to pay all of the restitution ordered, after notice to the juvenile's parent or parents and an opportunity

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for the parent or parents to be heard, the court may order the parent or parents to pay any portion of the restitution ordered that is outstanding where the court or a jury finds by clear and convincing evidence that the parent or parents knew or should have known of the juvenile's propensity to commit such acts and the acts are due to the parent's or parents' negligence or reckless disregard for the juvenile's propensity to commit such acts. Upon the eighteenth birthday of the juvenile, the parental obligation to pay restitution shall be terminated.

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"Is or will be unable to pay all of the restitution ordered."

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

Requiring the juvenile's parent or parents to pay if they are found to be aware of an negligent or reckless in preventing their juvenile's propensity to commit such acts.

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Georgia Ga. Code Ann. § 15-10-82 Hearing Fee on Application for Search or Arrest Warrant or Deposit Account Fraud Citation; No Fee Assessed Against Certain Alleged Victims

For hearing an application for an arrest or search warrant or deposit account fraud citation, the fee charged shall not exceed $20.00, but this fee may be waived by the issuing magistrate if he

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or she finds that because of the financial circumstances of the party applying for the warrant or citation or for other reasons this fee should not be charged in justice, provided that no fee shall be assessed against the alleged victim of a violation of Code Section 16-5-90, 16-5-91, 16-6-1, 16-6-2, 16-6-3, 16-6-4, 16-6-5.1, 16-6-22.1, or 16-6-22.2 or against the alleged victim of any domestic violence offense for costs associated with the filing of criminal charges against the stalking offender, sexual offender, or domestic violence offender or for the issuance or service of a warrant, protective order, or witness subpoena arising from the incident of stalking, sexual assault, or domestic violence.

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"Because of the financial circumstances of the party applying for the warrant or citation or for other reasons this fee should not be charged in justice."

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

The court may waive the fee.

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Georgia Ga. Code Ann. § 42-8-102(e) Probation and Supervision; Determination of Fees, Fines, and Restitution; Converting Moneys Owed to Community Service or Educational Advancement; Continuing Jurisdiction; Revocation; Transfer

(1) As used in this subsection, the term: (A)  "Developmental disability" shall have the same meaning as set forth in Code Section 37-1-1. (B)  "Indigent" means an individual who earns less than 100

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percent of the federal poverty guidelines unless there is evidence that the individual has other resources that might reasonably be used without undue hardship for such individual or his or her dependents. (C)  "Significant financial hardship" means a reasonable probability that an individual will be unable to satisfy his or her financial obligations for two or more consecutive months. (D)  "Totally and permanently disabled" shall have the same meaning as set forth in Code Section 49-4-80;  (2)  The court shall waive, modify, or convert fines, statutory surcharges, probation supervision fees, and any other moneys assessed by the court or a provider of probation services upon a determination by the court prior to or subsequent to sentencing that a defendant has a significant financial hardship or inability to pay or that there are any other extenuating factors which prohibit payment or collection; provided, however, that the imposition of sanctions for failure to pay such sums shall be within the discretion of the court through judicial process or hearings; (3)  Unless rebutted by a preponderance of the evidence that a defendant will be able to satisfy his or her financial obligations without undue hardship to the defendant or his or her dependents, a defendant shall be presumed to have a significant financial hardship if he or she: (A)  Has a developmental disability; (B)  Is totally and permanently disabled; (C)  Is indigent; or (D)  Has been released from confinement within the preceding 12 months and was incarcerated for more than 30 days before his or her release.

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"'Indigent; means an individual who earns less than 100 percent of the federal poverty guidelines unless there is evidence that the individual has other resources that might reasonably be used without

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undue hardship for such individual or his or her dependents;  'Significant financial hardship' means a reasonable probability that an individual will be unable to satisfy his or her financial obligations for two or more consecutive months."

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

The court must either reduce the fine, fee or surcharge to an amount the defendant can pay, or convert it to community service.

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Georgia Ga. Code Ann. § 17-14-10 Factors to be Considered by Ordering Authority in Determining Nature and Amount of Restitution

(a)  In determining the nature and amount of restitution, the ordering authority shall consider: (1) The financial resources and other assets of the offender or person ordered to pay restitution

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including whether any of the assets are jointly controlled; (2) The earnings and other income of the offender or person ordered to pay restitution; (3) Any financial obligations of the offender or person ordered to pay restitution, including obligations to dependents; (4) The amount of damages; (5) The goal of restitution to the victim and the goal of rehabilitation of the offender; (6) Any restitution previously made; (7) The period of time during which the restitution order will be in effect; and (8) Other factors which the ordering authority deems to be appropriate; (b)  If, subsequent to restitution being ordered pursuant to this article, a victim is convicted of a crime for which restitution is ordered, the ordering authority shall consider the previously ordered restitution as part of the financial resources of such victim.

All Not provided for At enforcement of fine or fee Not provided for Other Yes Not provided for
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Georgia Ga. Code. Ann. § 15-21-10 Procedure for Filing and Payment of Claims of Officers of Court When Indictment Found Not True, Defendant Acquitted, or Persons Unable to Pay

In cases where a bill of indictment is preferred and not found true by the grand jury, where a defendant is acquitted by a jury, or where persons liable by

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law for the payment of costs are unable to pay the same, the officers severally entitled to such costs may present an account therefor to the judge of the court in which the prosecutions were pending, which, after being examined and allowed by him, he shall order to be paid in the manner prescribed by law. The account and order shall be entered on the minutes of the court.

All Not provided for At enforcement of fine or fee Not provided for Determined by judge after hearing No

"The officers severally entitled to such costs may present an account therefor to the judge of the court in which the prosecutions were pending, which, after being examined and allowed

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by him, he shall order to be paid in the manner prescribed by law."

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Georgia Ga. Code Ann. § 17-10-1(d) Fixing of Sentence; Suspension or Probation of Sentence; Change in Sentence; Eligibility for Parole; Prohibited Modifications; Exceptions

(1) As used in this subsection, the term: (A)  "Developmental disability" shall have the same meaning as set forth in Code Section 37-1-1. (B)  "Indigent" means an individual who earns less than 100

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percent of the federal poverty guidelines unless there is evidence that the individual has other resources that might reasonably be used without undue hardship for such individual or his or her dependents. (C)  "Significant financial hardship" means a reasonable probability that an individual will be unable to satisfy his or her financial obligations for two or more consecutive months. (D)  "Totally and permanently disabled" shall have the same meaning as set forth in Code Section 49-4-80;  (2)  In determining the financial obligations, other than restitution, to impose on the defendant, the court shall consider: (A)  The defendant's financial resources and other assets, including whether any such assets are jointly controlled; (B)  The defendant's earnings and other income; (C)  The defendant's financial obligations, including obligations to dependents; (D)  The period of time during which the probation order will be in effect; (E)  The goal of the punishment being imposed; and (F)  Any other factor the court deems appropriate;  (3)  In any case involving a violation of local ordinance, misdemeanor, or felony in which the defendant has been punished in whole or in part by a fine, the court shall be authorized to allow the defendant to satisfy such fine or any fee imposed in connection with probation supervision through community service as set forth in Article 3 of Chapter 3 of Title 42. One hour of community service shall equal the dollar amount of one hour of paid labor at the minimum wage under the federal Fair Labor Standards Act of 1938, in effect on January 1, 2018, unless otherwise specified by the court. A defendant shall be required to serve the number of hours in community service which equals the number derived by dividing the amount owed by the defendant, including moneys assessed by a provider of probation services, by the federal minimum hourly wage or by the amount specified by the court. If the court orders educational advancement, the court shall determine the numbers of hours required to be completed. Prior to or subsequent to sentencing, a defendant, or subsequent to sentencing, a community supervision officer, may request that the court make all or any portion of the amount owed by the defendant be satisfied under this subsection;  (4)  At the time of sentencing, the court may waive the imposition of a fine, exclusive of the payment of statutory surcharges, upon a determination that a defendant has a significant financial hardship or inability to pay or other extenuating factors exist that prohibit payment or collection of such fine. When determining significant financial hardship, the court may consider whether the defendant is indigent and whether the defendant or his or her dependents has a developmental disability or is totally and permanently disabled. If the court waives the imposition of a fine under this paragraph, it shall instead impose a theoretical fine and the defendant shall be required to pay the statutory surcharges associated therewith.

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"'Indigent' means an individual who earns less than 100 percent of the federal poverty guidelines unless there is evidence that the individual has other resources that might reasonably be used without

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undue hardship for such individual or his or her dependents. 'Significant financial hardship' means a reasonable probability that an individual will be unable to satisfy his or her financial obligations for two or more consecutive months."

Before imposition of fine or fee Not provided for Determined by judge after hearing No Not provided for
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Georgia Ga. Code Ann. § 15-21A-6(a);(c) Additional Filing Fees; Application Fee For Indigent Defense Services; Remittance of Funds

(a)  In addition to all other legal costs, there shall be charged to the filing party and collected by the clerk an additional filing fee of $15.00 in each civil action

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or case filed in the superior, state, recorder's, mayor's, and magistrate courts except that municipalities, counties, and political subdivisions shall be exempt from such fee. Without limiting the generality of the foregoing, such fee shall apply to all adoptions, certiorari, trade name registrations, applications for change of name, and all other proceedings of a civil nature. Any matter which is docketed upon the official dockets of the enumerated courts and to which a number is assigned shall be subject to such fee, whether such matter is contested or not;  (c)  Any person who applies for or receives legal defense services under Chapter 12 of Title 17 shall pay the entity providing such services a single fee of $50.00 for the application for, receipt of, or application for and receipt of such services. The application fee shall not be imposed if the payment of the fee is waived by the court. The court shall waive the fee if it finds that the applicant is unable to pay the fee or that measurable hardship will result if the fee is charged. If the application fee required by this subsection has not been paid prior to the time the defendant is sentenced, the court shall impose such fee as a condition of probation.

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"Unable to pay the fee or that measurable hardship will result if the fee is charged."

Before imposition of fine or fee Not provided for Determined by judge after hearing No

"The application fee shall not be imposed if the payment of the fee is waived by the court."

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Georgia Ga. Code Ann. § 42-8-34(e)(1) Sentencing Hearings and Determinations; Presentence Investigations; Payment of Fees, Fines, and Costs; Post-Conviction, Presentence Bond; Continuing Jurisdiction; Transferal of Probation Supervision

The court may, in its discretion, require the payment of a fine, fees, or restitution as a condition of probation. Chapter 14 of Title 17 shall control when determining the

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amount of restitution. When probation supervision is required, the court may require the payment of a probation supervision fee as a condition of probation. In determining the financial obligations, other than restitution, to impose on the defendant, the court may consider: (A)  The defendant's financial resources and other assets, including whether any such asset is jointly controlled; (B)  The defendant's earnings and other income; (C)  The defendant's financial obligations, including obligations to dependents; (D)  The period of time during which the probation order will be in effect; (E)  The goal of the punishment being imposed; and (F)  Any other factor the court deems appropriate.

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"The court may consider: (A)  The defendant's financial resources and other assets, including whether any such asset is jointly controlled; (B)  The defendant's earnings and other income; (C)  The defendant's financial obligations, including

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obligations to dependents; (D)  The period of time during which the probation order will be in effect; (E)  The goal of the punishment being imposed; and (F)  Any other factor the court deems appropriate."

Before imposition of fine or fee Not provided for Determined by judge after hearing No Not provided for
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Georgia Ga. Code. Ann. § 42-8-102(c) Probation and Supervision; Determination of Fees, Fines, and Restitution; Converting Moneys Owed to Community Service or Educational Advancement; Continuing Jurisdiction; Revocation; Transfer

The court may, in its discretion, require the payment of a fine, fees, or restitution as a condition of probation. The provisions of Chapter 14 of Title 17 shall control

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in determining the amount of restitution. When probation supervision is required, the court may require the payment of a probation supervision fee as a condition of probation. In determining the financial obligations, other than restitution, to impose on the defendant, the court may consider: (1)  The defendant's financial resources and other assets, including whether any such asset is jointly controlled; (2)  The defendant's earnings and other income; (3)  The defendant's financial obligations, including obligations to dependents; (4)  The period of time during which the probation order will be in effect; (5)  The goal of the punishment being imposed; and (6)  Any other factor the court deems appropriate.(d)  The court may convert fines, statutory surcharges, and probation supervision fees to community service or educational advancement on the same basis as it allows a defendant to pay a fine through community service or educational advancement as set forth in subsection (d) of Code Section 17-10-1.

Misdemeanor

"The court may consider: (1)  The defendant's financial resources and other assets, including whether any such asset is jointly controlled; (2)  The defendant's earnings and other income; (3)  The defendant's financial obligations, including

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obligations to dependents; (4)  The period of time during which the probation order will be in effect; (5)  The goal of the punishment being imposed; and (6)  Any other factor the court deems appropriate."

At enforcement of fine or fee Not provided for Determined by judge after hearing No

Community Service or Educational Advancement.

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Georgia Ga. Code. Ann. § 17-10-1(d) Fixing of Sentence; Suspension or Probation of Sentence; Change in Sentence; Eligibility for Parole; Prohibited Modifications; Exceptions

(1)  As used in this subsection, the term: (A)  "Developmental disability" shall have the same meaning as set forth in Code Section 37-1-1. (B)  "Indigent" means an individual who earns less than 100

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percent of the federal poverty guidelines unless there is evidence that the individual has other resources that might reasonably be used without undue hardship for such individual or his or her dependents. (C)  "Significant financial hardship" means a reasonable probability that an individual will be unable to satisfy his or her financial obligations for two or more consecutive months. (D)  "Totally and permanently disabled" shall have the same meaning as set forth in Code Section 49-4-80.  (2)  In determining the financial obligations, other than restitution, to impose on the defendant, the court shall consider: (A)  The defendant's financial resources and other assets, including whether any such assets are jointly controlled; (B)  The defendant's earnings and other income; (C)  The defendant's financial obligations, including obligations to dependents; (D)  The period of time during which the probation order will be in effect; (E)  The goal of the punishment being imposed; and (F)  Any other factor the court deems appropriate;  (3)  In any case involving a violation of local ordinance, misdemeanor, or felony in which the defendant has been punished in whole or in part by a fine, the court shall be authorized to allow the defendant to satisfy such fine or any fee imposed in connection with probation supervision through community service as set forth in Article 3 of Chapter 3 of Title 42. One hour of community service shall equal the dollar amount of one hour of paid labor at the minimum wage under the federal Fair Labor Standards Act of 1938, in effect on January 1, 2018, unless otherwise specified by the court. A defendant shall be required to serve the number of hours in community service which equals the number derived by dividing the amount owed by the defendant, including moneys assessed by a provider of probation services, by the federal minimum hourly wage or by the amount specified by the court. If the court orders educational advancement, the court shall determine the numbers of hours required to be completed. Prior to or subsequent to sentencing, a defendant, or subsequent to sentencing, a community supervision officer, may request that the court make all or any portion of the amount owed by the defendant be satisfied under this subsection;  (4)  At the time of sentencing, the court may waive the imposition of a fine, exclusive of the payment of statutory surcharges, upon a determination that a defendant has a significant financial hardship or inability to pay or other extenuating factors exist that prohibit payment or collection of such fine. When determining significant financial hardship, the court may consider whether the defendant is indigent and whether the defendant or his or her dependents has a developmental disability or is totally and permanently disabled. If the court waives the imposition of a fine under this paragraph, it shall instead impose a theoretical fine and the defendant shall be required to pay the statutory surcharges associated therewith.

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"'Indigent' means an individual who earns less than 100 percent of the federal poverty guidelines unless there is evidence that the individual has other resources that might reasonably be used without

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undue hardship for such individual or his or her dependents.  'Significant financial hardship' means a reasonable probability that an individual will be unable to satisfy his or her financial obligations for two or more consecutive months."

Not provided for Not provided for Determined by judge after hearing No Not provided for
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Georgia Ga. Code Ann. § 42-8-105(f) Probationer Obligation to Keep Officer Informed of Certain Information; Tolling for Failure to Meet Certain Obligations; Procedure

Any unpaid fines, restitution, or other moneys owed as a condition of probation shall be due when the probationer is arrested; provided, however, that if the entire balance of his

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or her probation is revoked, all the conditions of probation, including moneys owed, shall be negated by his or her imprisonment. If only part of the balance of the probation is revoked, the court shall determine the probationer's responsibility for the amount of the unpaid fines, restitution, and other moneys owed that shall be imposed upon his or her return to probation after release from imprisonment and may reduce arrearages under the same circumstances and conditions as set forth in subsection (f) of Code Section 42-8-102.

All Not provided for At enforcement of fine or fee Not provided for Determined by judge after hearing Yes Not provided for