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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Florida Fla. Stat. §775.0844(8) White Collar Crime Victim Protection Act
A person convicted of an aggravated white collar crime under this section is liable for all court costs and shall pay restitution to each victim of the crime, regardless of
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whether the victim is named in the information or indictment. As used in this subsection, “victim” means a person directly and proximately harmed as a result of the commission of the offense for which restitution may be ordered, including any person directly harmed by the defendant’s criminal conduct in the course of the commission of the aggravated white collar crime. The court shall hold a hearing to determine the identity of qualifying victims and shall order the defendant to pay restitution based on his or her ability to pay, in accordance with this section and s. 775.089.
Felony Not provided for Before imposition of fine or fee Not provided for Determined by judge after hearing Yes

Not specified

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Kansas Kan. Stat. Ann. ? 21-6604(d) Authorized dispositions; crimes committed on or after July 1, 1993
(d) In addition to any of the above, the court shall order the defendant to reimburse the county general fund for all or a part of the expenditures by the
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county to provide counsel and other defense services to the defendant. Any such reimbursement to the county shall be paid only after any order for restitution has been paid in full. In determining the amount and method of payment of such sum, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose. A defendant who has been required to pay such sum and who is not willfully in default in the payment thereof may at any time petition the court which sentenced the defendant to waive payment of such sum or any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant's immediate family, the court may waive payment of all or part of the amount due or modify the method of payment.
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payment of the amount due will impose manifest hardship on the defendant or the defendant's immediate family

At defendant's request before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing Yes

the court may waive payment of all or part of the amount due or modify the method of payment

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Montana Mont. Code Ann. § 45-5-621(3) Nonsupport
If a defense to the charge of nonsupport is inability to pay, the person's inability must be the result of circumstances over which the person had no control. In determining
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ability to pay, after an allowance for the person's minimal subsistence needs, the support of a spouse, child, or other dependent has priority over any other obligations of the person.
Misdemeanor, Felony Not provided for Before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing Yes

This is a defense in a nonpayment case

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Oklahoma Okla. Stat. tit. 10A, § 1-4-701A Reimbursements and costs by parents able to pay Upon notice to the parent or other person legally obligated to support the child and upon an opportunity to be heard and a finding of financial ability to pay All Not provided for Before imposition of fine or fee Not provided for Determined by judge after hearing Yes

None specified

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Tennessee Tenn. Code Ann. § 39-13-102(e)(2) Aggravated Assault - Domestic Abuse
In addition to any other punishment that may be imposed for a violation of this section, if the relationship between the defendant and the victim of the assault is such
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that the victim is a domestic abuse victim as defined in § 36-3-601, and if, as determined by the court, the defendant possesses the ability to pay a fine in an amount not in excess of two hundred dollars ($200), then the court shall impose a fine at the level of the defendant's ability to pay, but not in excess of two hundred dollars ($200).
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No definition of ability to pay is provided. However, in imposing fines, courts must consider the defendant's ability to pay, prior criminal history, potential for rehabilitation, financial means, and other

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mitigating and enhancing factors.

Before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing Yes

Imposition of a lower fee

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Tennessee Tenn. Code Ann. § 39-13-111(c)(5) Domestic Assault - Additional Fee
In addition to any other punishment that may be imposed for a violation of this section, if, as determined by the court, the defendant possesses the ability to pay a
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fine in an amount not in excess of two hundred twenty-five dollars ($225), then the court shall impose a fine at the level of the defendant's ability to pay, but not in excess of two hundred twenty-five dollars ($225).
All

No definition of ability to pay is provided. However, in imposing fines, courts must consider the defendant's ability to pay, prior criminal history, potential for rehabilitation, financial means, and other

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mitigating and enhancing factors.

Before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing Yes

Imposition of a lower fee

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Tennessee Tenn. Code Ann. § 39-13-709(e) Sex Offender Conviction Tax
The court may waive all or any portion of the tax required by this section if the court finds that a person convicted of a sex offense is indigent or
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financially unable to pay.
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No definition of ability to pay is provided. However, in imposing fines, courts must consider the defendant's ability to pay, prior criminal history, potential for rehabilitation, financial means, and other

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mitigating and enhancing factors.

Not provided for Burden on defendant to show inability to pay Determined by judge after hearing No

Reduction or waiver of the fee

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Tennessee Tenn. Code Ann. § 39-17-428(d) Fines and Penalties; Mandatory Minimums; Allocation
(1) Unless the judge, using the applicable criteria set out in § 40-14-202(c), determines that a person convicted of violating this section is indigent, or that payment of the minimum
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fine would result in a severe economic hardship, or such fine would otherwise not be in the interests of justice, the minimum fines imposed by this section shall be mandatory and shall not be reduced, suspended, waived or otherwise released by the court. No plea agreement shall be accepted by a court if the agreement attempts to reduce or suspend all or any portion of the mandatory fines imposed by this section unless the judge determines that one (1) of the conditions set out in the first sentence of this subdivision (d)(1) exists.(2) If the judge of a court of general sessions determines that it is necessary to reduce, suspend, waive or otherwise release the minimum fines imposed by this section, the judge shall assess the fine, and write on the warrant the amount of the fine, the fact that it is reduced, suspended, waived or released and the reasons for the reduction, suspension, waiver or release. If done by the judge of a court of record, the judge shall assess the fine and make a specific finding of fact on the record relative to the reduction, suspension, waiver or release and the reasons for the reduction, suspension, waiver or release.
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No definition of ability to pay is provided. However, in imposing fines, courts must consider the defendant's ability to pay, prior criminal history, potential for rehabilitation, financial means, and other

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mitigating and enhancing factors.

Not provided for Burden on defendant to show inability to pay Determined by judge after hearing Yes

Reduction or waiver of the fee

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Tennessee Tenn. Code Ann. § 40-39-305(b) Sexual Offender Fee
The department may waive all or any portion of the fees required by this section if it determines that an offender is indigent or financially unable to pay all or
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any portion of the fee. The department shall waive only that portion of the surcharge which the offender is financially unable to pay.
All

No definition of ability to pay is provided. However, in imposing fines, courts must consider the defendant's ability to pay, prior criminal history, potential for rehabilitation, financial means, and other

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mitigating and enhancing factors.

Not provided for Burden on defendant to show inability to pay Determined by judge after hearing No

Reduction or waiver of the fee

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Michigan Mich. Comp. Laws § 772.6 Failure to pay recognizance
If the person so ordered to recognize refuses or neglects to provide that recognizance, the court shall commit the person to the county jail during the period for which security
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was required, or until the person provides that recognizance. A person shall not be incarcerated for failure to pay the recognizance unless the court conducts a hearing and determines that the person has the resources to pay the recognizance and has not made a good faith effort to do so. In determining whether to incarcerate the person, the court shall also consider the person's employment status, earning ability, and financial resources; the willfulness of the person's failure to pay the recognizance; and any other special circumstances that may have a bearing on the person's ability to pay the recognizance. The court shall state in the warrant the cause of commitment with the sum and the time for which the security was required.
All

the person has the resources to pay the recognizance and has not made a good faith effort to do so

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

none

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Michigan Mich. Comp. Laws § 600.8729(1)-(4) Payment of fine, default as civil contempt
If a defendant defaults in the payment of a civil fine, costs, assessment, or, if applicable, damages or expenses as provided in section 8733(2) if applicable, or any installment, as
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ordered pursuant to section 8727, the court, upon the motion of the plaintiff or upon its own motion, may require the defendant to show cause why the defendant should not be held in civil contempt and may issue a summons, an order to show cause, or a bench warrant of arrest for the defendant's appearance. . . . If it appears that the default in the payment of a fine, costs, assessment, or damages or expenses does not constitute civil contempt, the court may enter an order allowing the defendant additional time for payment, reducing the amount of payment or of each installment, or revoking the fine, costs, assessment, or damages or expenses.
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"the default was not attributable to an intentional refusal to obey the order of the court or to a failure on his or her part to make a good faith

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effort to obtain the funds required for payment"

At enforcement of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing No

allowing the defendant additional time for payment, reducing the amount of payment or of each installment, or revoking the fine, costs, assessment, or damages or expense

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Washington DC DC ST § 16-711 (b) Restitution or reparation
(b) When restitution or reparation is ordered, the court shall take into consideration the number of victims, the actual damage of each victim, the resources of the defendant, the defendant's
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ability to earn, any obligation of the defendant to support dependents, and other matters as pertain to the defendant's ability to make restitution or reparation.
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"… the court shall take into consideration… resources of the defendant, the defendant's ability to earn, any obligation of the defendant to support dependents…"

Before imposition of fine or fee Not provided for Determined by judge after hearing Yes Not provided for
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Washington DC DC ST § 11-2605 Services other than counsel
Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for an adequate defense may request them in an ex parte application. Upon finding,
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after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court shall authorize counsel to obtain the services.
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financially unable to obtain necessary services

At defendant's request before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing No

Cost paid for

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North Dakota N.D. Cent. Code § 12.1-32-08(4)(b) Hearing prior to ordering restitution, reparation, or reimbursement of indigent defense costs and expenses--Conditions--Collection of restitution for insufficient funds checks--Continuing appropriation
A defendant who is required to reimburse indigent defense costs and expenses as a condition of probation and who is not willfully in default in that reimbursement may at any
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time petition the court that imposed the condition to waive reimbursement of all or any portion of the costs and expenses. If the court is satisfied that reimbursement of the amount due will impose undue hardship on the defendant or the defendant's immediate family, the court may waive reimbursement of all or any portion of the amount due or modify the method of payment.
All

the amount due will impose undue hardship on the defendant or the defendant's immediate family

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

waived

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Maryland Md. Code Ann., Cts. & Jud. Proc. § 7-201(b) Waiver of Fees for Indigent Petitioners
The circuit court shall pass an order waiving the payment in advance if: (1) Upon petition for waiver, it is satisfied that the petitioner is unable by reason of his
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poverty to make the payment; and (2) The petitioner's attorney, if any, certifies that the suit, appeal, or writ is meritorious.
All Not provided for At enforcement of fine or fee Not provided for Determined by judge after hearing No

Waiver of fee

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Maryland Md. Code Ann., Cts. & Jud. Proc. § 7-405 Waiver of Criminal Court Costs
The District Court or a circuit court in a criminal case may not waive any court costs imposed under § 7-409 of this subtitle unless the defendant establishes indigency as
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provided in the Maryland Rules.
All Not provided for At enforcement of fine or fee Not provided for Determined by judge after hearing No

Waiver of fee

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Maryland Md. Code Ann., Cts. & Jud. Proc. § 7-504(c)(2) Ability to Pay Fine
(a) A defendant who is unable to pay a fine ordered by a court may apply to the court for a reduction of the fine. (b) If a defendant
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fails or is unable to pay a fine as ordered by a court, the court may investigate the reasons for the failure or inability to pay the fine, including the defendant's financial and family situation and whether nonpayment of the fine is contumacious or is due to indigence. (c) After an investigation that a court considers necessary as to the reasons for the failure or inability to pay a fine, the court: (1) May order that the individual be committed to a correctional facility; (2) May reduce the fine to an amount that the court determines the defendant is able to pay; or (3) Subject to subsection (d) of this section, may direct that the individual be imprisoned until payment of: (i) The fine; or(ii) Part of the fine that is undischarged after a pro rata credit for time served instead of payment.
All Not provided for At enforcement of fine or fee Not provided for Determined by judge after hearing No

Commitment; Reduction of Fee; Incarceration until payment based upon a per diem rate

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New Jersey N.J. Stat. Ann. § 2B:12-23.1 Inability to pay fine in full on date of court hearing
Notwithstanding any other provision of law to the contrary, if a municipal court finds that a person does not have the ability to pay a penalty in full on the date
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of the hearing or has failed to pay a previously imposed penalty, the court may order the person to perform community service in lieu of the payment of a penalty; or, order the payment of the penalty in installments for a period of time determined by the court.
All Not provided for Before imposition of fine or fee Not provided for Determined by judge after hearing No

Community service, installment plan

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New Jersey N.J. Stat. Ann. § 2B:12-23.1 Default of payment
If a person defaults on any payment and a municipal court finds that the defendant does not have the ability to pay, the court may: (1) reduce the penalty, suspend
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the penalty, or modify the installment plan; (2) order that credit be given against the amount owed for each day of confinement, if the court finds that the person has served jail time for the default; (3) revoke any unpaid portion of the penalty, if the court finds that the circumstances that warranted the imposition have changed or that it would be unjust to require payment; (4) order the person to perform community service in lieu of payment of the penalty; or (5) impose any other alternative permitted by law in lieu of payment of the penalty. b. For the purposes of this section, “penalty” means any fine, statutorily-mandated assessment, surcharge or other financial penalty imposed by a municipal court, except restitution or a surcharge assessed pursuant to subsection f. of section 1 of P.L.2000, c. 75 (C.39:4-97.2).
All Not provided for At enforcement of fine or fee Not provided for Determined by judge after hearing No

(1) reduce the penalty, suspend the penalty, or modify the installment plan; (2) order that credit be given against the amount owed for each day of confinement, if the court

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finds that the person has served jail time for the default; (3) revoke any unpaid portion of the penalty, if the court finds that the circumstances that warranted the imposition have changed or that it would be unjust to require payment; (4) order the person to perform community service in lieu of payment of the penalty; or (5) impose any other alternative permitted by law in lieu of payment of the penalty

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Virginia Va. Code Ann. § 19.2-358(C) Show cause hearing on default
B. Following the order to show cause or following a capias issued for a defendant's failure to comply with a court order to appear issued pursuant to subsection A of
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§ 19.2-354, unless the defendant shows that his default was not attributable to an intentional refusal to obey the sentence of the court, or not attributable to a failure on his part to make a good faith effort to obtain the necessary funds for payment, or unless the defendant shows that any failure to appear was not attributable to an intentional refusal to obey the order of the court, the court may order the defendant confined as for a contempt for a term not to exceed sixty days or impose a fine not to exceed $500. The court may provide in its order that payment or satisfaction of the amounts in default at any time will entitle the defendant to his release from such confinement or, after entering the order, may at any time reduce the sentence for good cause shown, including payment or satisfaction of such amounts. C. If it appears that the default is excusable under the standards set forth in subsection B hereof, the court may enter an order allowing the defendant additional time for payment, reducing the amount due or of each installment, or remitting the unpaid portion in whole or in part.
All Not provided for At enforcement of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing No

additional time for payment, reducing the amount due or of each installment, or remitting the unpaid portion in whole or in part