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.

All

"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.

All

"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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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. § 7-11-402(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.