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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Iowa Iowa Code § 910.7(1)-(2) Petition for hearing

1. At any time during the period of probation, parole, or incarceration, the offender or the office or individual who prepared the offender’s restitution plan may petition the court on

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any matter related to the plan of restitution or restitution plan of payment and the court shall grant a hearing if on the face of the petition it appears that a hearing is warranted.

2. After a petition has been filed, the court, at any time prior to the expiration of the offender’s sentence, provided the required notice has been given pursuant to subsection 3, may modify the plan of restitution or the restitution plan of payment, or both, and may extend the period of time for the completion of restitution.

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N/A

Not provided for Not provided for Determined by judge after hearing No

Modification of the restitution plan or payment plan

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Iowa Iowa Code § 909.7 Ability to pay fine presumed.

1. A defendant is presumed to be able to pay a fine. However, if the defendant proves to the satisfaction of the court that the defendant cannot pay the fine, the

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defendant shall not be sentenced to confinement for the failure to pay the fine.

2. A defendant who proves that the defendant cannot pay the fine may, at the discretion of the court, be ordered to perform community service pursuant to section 909.3A.

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Not provided for

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

Community service instead of a fine (additionally, not being imprisoned for failure to pay)

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Iowa Iowa Code § 910.2(2)(a) Restitution or community service

When the offender is not reasonably able to pay all or a part of the crime victim compensation program reimbursement, public agency restitution, court costs including correctional fees approved pursuant

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to section 356.7, court-appointed attorney fees ordered pursuant to section 815.9, including the expense of a public defender, contribution to a local anticrime organization, or medical assistance program restitution, the court may require the offender in lieu of that portion of the crime victim compensation program reimbursement, public agency restitution, court costs including correctional fees approved pursuant to section 356.7, court-appointed attorney fees ordered pursuant to section 815.9, including the expense of a public defender, contribution to a local anticrime organization, or medical assistance program restitution for which the offender is not reasonably able to pay, to perform a needed public service for a governmental agency or for a private nonprofit agency which provides a service to the youth, elderly, or poor of the community.

All Not provided for Not provided for Not provided for Determined by judge without hearing No

Perform a needed public service for a governmental agency or for a private nonprofit agency which provides a service to the youth, elderly, or poor of the community.

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Iowa Iowa Code § 692A.110(1) Registration fees and civil penalty for offenders

 

A sex offender shall pay an annual fee in the amount of twenty-five dollars to the sheriff of the county of principal residence, beginning with the first required in-person appearance

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at the sheriff’s office after July 1, 2009. If the sex offender has more than one principal residence in this state, the offender shall pay the annual fee in the county where the offender is first required to appear in person after July 1, 2009. The sheriff shall accept the registration. If, at the time of registration, the sex offender is unable to pay the fee, the sheriff may allow the offender time to pay the fee, permit the payment of the fee in installments, or may waive payment of the fee.

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Not provided for

Before imposition of fine or fee Not provided for Not provided for No

Waive payment, allow for payment in installments, or give more time to pay.

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Iowa Iowa Code § 321J.2(3)(c)(2) Operating while under the influence of alcohol or a drug or while having an alcohol concentration of .08 or more (OWI)

As an alternative to a portion or all of the fine, the court may order the person to perform unpaid community service. However, the court shall not order the person

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to perform unpaid community service in lieu of a civil penalty or victim restitution. Surcharges and fees shall also be assessed pursuant to chapter 911.

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N/A

Before imposition of fine or fee Not provided for Not provided for No

Community service

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Iowa Iowa Code § 910.4(2)(d),(3) Condition of probation--payment plan

2. When the offender is committed to a county jail, or to an alternate facility, the office or individual charged with supervision of the offender shall prepare a restitution plan of

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payment taking into consideration the offender’s income, physical and mental health, age, education, employment and family circumstances. d. When there is a significant change in the offender’s income or circumstances, the office or individual which has supervision of the plan of payment shall submit a modified restitution plan of payment to the court.

3. a. When there is a transfer of supervision from one office or individual charged with supervision of the offender to another, the sending office or individual shall forward to the receiving office or individual all necessary information regarding the balance owed against the original amount of restitution ordered and the balance of public service required. b. When the offender’s circumstances and income have significantly changed, the receiving office or individual shall submit a new plan of payment to the sentencing court for approval or modification based on the considerations enumerated in this section.

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Significant change in the defendant's circumstances or income.

Not provided for Not provided for Not provided for Yes

Modified payment plan

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Iowa Iowa Code § 905.14(3) Fees for probation and parole

The department of corrections may adopt rules for the administration of this section. If adopted, the rules shall include a provision for waiving the collection of fees for persons determined

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to be unable to pay.

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Not provided for

At enforcement of fine or fee Not provided for Not provided for No

Waiving the fee at enforcement.

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Iowa Iowa Code § 815.9(6) Indigency determined — penalty

If the person receiving legal assistance is acquitted in a criminal case or is a party in a case other than a criminal case, the court shall order the payment

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of all or a portion of the total costs and fees incurred for legal assistance, to the extent the person is reasonably able to pay, after an inquiry which includes notice and reasonable opportunity to be heard.

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"reasonably able to pay"

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

Not provided for

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Iowa Iowa Code § 815.9(1) Indigency determined — penalty

1. For purposes of this chapter, chapters 13B, 229A, 232, 665, 812, 814, and 822, and section 811.1A, and the rules of criminal procedure, a person is indigent if the person is

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entitled to an attorney appointed by the court as follows:

a. A person is entitled to an attorney appointed by the court to represent the person if the person has an income level at or below one hundred twenty-five percent of the United States poverty level as defined by the most recently revised poverty income guidelines published by the United States department of health and human services, unless the court determines that the person is able to pay for the cost of an attorney to represent the person on the pending case. In making the determination of a person’s ability to pay for the cost of an attorney, the court shall consider not only the person’s income, but also the availability of any assets subject to execution, including but not limited to cash, stocks, bonds, and any other property which may be applied to the satisfaction of judgments, and the seriousness of the charge or nature of the case.

b. A person with an income level greater than one hundred twenty-five percent, but at or below two hundred percent, of the most recently revised poverty income guidelines published by the United States department of health and human services shall not be entitled to an attorney appointed by the court, unless the court makes a written finding that not appointing counsel on the pending case would cause the person substantial hardship. In determining whether substantial hardship would result, the court shall consider not only the person’s income, but also the availability of any assets subject to execution, including but not limited to cash, stocks, bonds, and any other property which may be applied to the satisfaction of judgments, and the seriousness of the charge or nature of the case.

c. A person with an income level greater than two hundred percent of the most recently revised poverty income guidelines published by the United States department of health and human services shall not be entitled to an attorney appointed by the court, unless the person is charged with a felony and the court makes a written finding that not appointing counsel would cause the person substantial hardship. In determining whether substantial hardship would result, the court shall consider not only the person’s income, but also the availability of any assets subject to execution, including but not limited to cash, stocks, bonds, and any other property which may be applied to the satisfaction of judgments, and the seriousness of the charge or nature of the case.

All

Indigent - person has an income level at or below one hundred twenty-five percent of the United States poverty level as defined by the most recently revised poverty income guidelines published

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by the United States department of health and human services.

Ability to pay - the court shall consider not only the person’s income, but also the availability of any assets subject to execution, including but not limited to cash, stocks, bonds, and any other property which may be applied to the satisfaction of judgments, and the seriousness of the charge or nature of the case.

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

Entitled to a court-appointed attorney.

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Iowa Iowa Code § 815.9(5) Indigency determined — penalty

If the person receiving legal assistance is convicted in a criminal case, the total costs and fees incurred for legal assistance shall be ordered paid when the reports submitted pursuant

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to subsection 4 are received by the court, and the court shall order the payment of such amounts as restitution, to the extent to which the person is reasonably able to pay, or order the performance of community service in lieu of such payments, in accordance with chapter 910.

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"reasonably able to pay"

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

Community service in lieu of payment

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Iowa Iowa Code § 815.14 Fee for public defender

The expense of the public defender required to be reimbursed is subject to a determination of the extent to which the person is reasonably able to pay, as provided for

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in section 815.9 and chapter 910.

All

Not provided for

Before imposition of fine or fee Not provided for Not provided for No

Not provided for

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Iowa Iowa Code § 822.5 Postconviction Procedure: Payment of costs

If the applicant is unable to pay court costs and stenographic and printing expenses, these costs and expenses shall be made available to the applicant in the trial court, and

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on review. Unless the applicant is confined in a state institution and is seeking relief under section 822.2, subsection 1, paragraphs “e” and “f”, the costs and expenses of legal representation shall also be made available to the applicant in the preparation of the application, in the trial court, and on review if the applicant is unable to pay. However, nothing in this section shall be interpreted to require payment of expenses of legal representation, including stenographic, printing, or other legal services or consultation, when the applicant is self-represented or is utilizing the services of an inmate.

All

Not provided for

Not provided for Not provided for Not provided for Yes

Non-payment

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Montana Mont. Code Ann. § 3-1-317(2) User surcharge for court information technology -- exception
If a court determines that a defendant in a criminal case or determines pursuant to 25-10-404 that a party in a civil case is unable to pay the surcharge, the
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court may waive payment of the surcharge imposed by this section.
All Not provided for Not provided for Not provided for Not provided for No

Waive surcharge

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Montana Mont. Code Ann. § 3-1-318(2) Surcharges upon certain criminal convictions -- exception
A court may not waive payment of the surcharge unless the court determines that the defendant is unable to pay the surcharge. Inability to pay must be supported by a
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sworn statement from the defendant demonstrating financial inability to pay without substantial hardship in providing for personal or family necessities. The statement is not admissible in the proceeding unless offered for impeachment purposes and is not admissible in a subsequent prosecution for perjury or false swearing.
All

Financial inability to pay without substantial hardship in providing for personal or family necessities

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

Waive surcharge

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Montana Mont. Code Ann. § 45-6-101(2) Criminal Mischief
A person convicted of criminal mischief must be ordered to make restitution in an amount and manner to be set by the court. The court shall determine the manner and
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amount of restitution after full consideration of the convicted person's ability to pay the restitution.
All Not provided for Before imposition of fine or fee Not provided for Not provided for No

Determine amount of restitution accordingly.

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Montana Mont. Code Ann. § 45-6-101(2) Criminal Mischief
Upon good cause shown by the convicted person, the court may modify any previous order specifying the amount and manner of restitution. Full payment of the amount of restitution ordered
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must be made prior to the release of state jurisdiction over the person convicted
All Not provided for At defendant's request at enforcement Burden on defendant to show inability to pay Not provided for No

Modify previous order specifying the amount and manner of restitution.

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Montana Mont. Code Ann. § 46-18-241(3) Condition of Restitution
 If at any time the court finds that, because of circumstances beyond the offender's control, the offender is not able to pay any restitution, the court may order the offender
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to perform community service during the time that the offender is unable to pay. The offender must be given a credit against restitution due at the rate of the hours of community service times the state minimum wage in effect at the time that the community service is performed.
All Not provided for Not provided for Not provided for Not provided for No

Community service payable against restitution owed in amount equal to the minimum wage for each hour worked.

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Montana Mont. Code Ann. § 45-5-206(5) Partner or Family Member Assault -- Penalty
In addition to any sentence imposed under subsections (3) and (4), after determining the financial resources and future ability of the offender to pay restitution as provided for in 46-18-242,
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the court shall require the offender, if able, to pay the victim's reasonable actual medical, housing, wage loss, and counseling costs.
Felony Not provided for Before imposition of fine or fee Not provided for Not provided for Yes

No payment of fee

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Montana Mont. Code Ann. § 45-5-206(6) Partner or Family Member Assault -- Penalty
In addition to the requirements of subsection (5), if financially able, the offender must be ordered to pay for the costs of the offender's probation, if probation is ordered by
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the court.
Felony Not provided for Before imposition of fine or fee Not provided for Not provided for Yes

No payment of fee

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Montana Mont. Code Ann. § 45-5-503(5) Sexual intercourse without consent
In addition to any sentence imposed under subsection (2) or (3), after determining the financial resources and future ability of the offender to pay restitution as required by 46-18-242, the
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court shall require the offender, if able, to pay the victim's reasonable medical and counseling costs that result from the offense. The amount, method, and time of payment must be determined in the same manner as provided for in 46-18-244.
Felony Not provided for Before imposition of fine or fee Not provided for Not provided for Yes

Lower restitution amounts or alternative forms of restitution may be available