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State Citation Description/Statute Name Question Brief answer Language from the opinion When does the case apply?
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Michigan Mich. Op. Att'y Gen. (1998) Opinion No. 6995 Michigan-Attorney General opinion Other applicable opinions
A prosecutor is not authorized by law to require a criminal defendant to pay costs as a condition for reducing or dismissing criminal charges pending against the defendant. A court
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may, however, when sentencing a convicted defendant, impose such costs as are permitted by statute, including those permissible costs agreed to between the prosecutor and the defendant as part of a plea bargain.
Criminal prosecutions are governed by the Michigan Code of Criminal Procedure (Code), 1927 PA 175, MCL 760.1 et seq; MSA 28.841 et seq. The Code, at Chapter XI, MCL 771.1
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et seq; MSA 28.1131 et seq, authorizes the imposition of costs in criminal cases. If a defendant has been found guilty, and if it appears to the satisfaction of the court that the defendant is an appropriate candidate, the court may place the defendant on probation. Section 1. As a condition of probation, the court may require the defendant to pay costs. Section 3(2)(c). Such costs, however, are limited to expenses specifically incurred in prosecuting the defendant, in providing legal assistance to the defendant, and in providing probation supervision of the defendant. Section 3(4).
Fines and fees
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Michigan Mich. Op. Att'y Gen. (2008) Opinion No. 7217 Michigan-Attorney General opinion The use of funds from criminal fines and assessments are restricted by provisions of the Michigan State Constitution.
However, the Legislature should be aware of the limitations imposed by Const 1963, art 8, § 9, which requires that fines assessed for any breach of the penal laws be
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used to support libraries. If excess revenue in the Crime Victim's Rights Fund is used for purposes other than to enforce and pay for the crime victim rights enumerated in art 1, § 24, the use could face scrutiny to determine if the assessments conflict with art 8, § 9 or other constitutional provisions. . . . Therefore, to the extent that the Legislature intends to authorize uses of the Fund to pay for the constitutionally enumerated crime victim's rights, it must consider whether each proposed use is within the language of art 1, § 24, given the principles of constitutional construction that guide the Court.
Fines and fees
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Ohio 1990 Ohio Op. Atty. Gen. No. 90-088 (Nov. 14 1990) Fines and fees Does allowing different municipalities to set their own indigency standards or fines/fees violate the equal protection afforded by the state’s constitution? Indigency should be determined on a case-by-case basis, not through set standards
A gleaning of the aforementioned authorities clearly reveals that there are no set criteria for determining whether an individual is indigent. Rather, the preferred approach is to determine indigency on
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a case by case basis so as to accord attention to any and all factors tending to indicate an individual's financial condition. . . . [T]he the criteria for determining . . . whether an individual is indigent, include the ready availability of real or personal property owned; employment benefits; pensions; annuities; social security; unemployment compensation; inheritances; number and age of dependents; outstanding debts, obligations and liabilities; and any other relevant considerations concerning the financial condition of an individual.
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Ohio no fines and fees Which fines and/or fees may be collected by a private vendor?
Neither the courts nor the State AG has considered this question. However, the Ohio Revised Code provides that both misdemeanor fines, § 2928.18(F) and felony fines, § 2928.28(G)(1), may be
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collected by private vendors
Transparency
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Ohio no ability to pay Who has the burden of proof in an ability to pay determination? What is the standard of proof required? See Case Law: Liming v. Damos, 979 N.E.2d 297 (Ohio 2012) Fines and fees
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Ohio no Ohio-Attorney General opinion Should ability to pay be considered when imposing fines or fees or only when collecting fines or fees? See Case Law: State v. Meyer, 706 N.E.2d 378, 380 (1997); Ohio Rev. Code § 2947.14 ability to pay Fines and fees
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Ohio 2012 Ohio Op. Att'y Gen. No. 2012-039 (Nov. 14, 2012) fines and fees What authority do county or municipal courts have to set fines or fees? County courts can use their fining power to fund various projects, programs, and services of the court
Although a county court has authority to use a special projects fund established under R.C. 1907.24(B)(1) to finance community service programs, nothing in the Ohio Constitution, Revised Code, Ohio Rules
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of Criminal Procedure, or Rules of Superintendence for the Courts of Ohio directs the manner in which a county court may use moneys in a special projects fund to provide such financing. This means that the judges of a county court have the discretion and implied power to use special projects fund moneys in whatever manner is reasonably necessary to make community service programs available to persons who are convicted of, or plead guilty to, a misdemeanor.
Fines and fees
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Ohio no Fines and fees What authority does the state supreme court have to impose binding state-wide rules on the imposition or collection of fees and fines?
This has not been considered by courts or the State AG. But the Ohio Supreme Court issues "bench cards" guiding the lower courts on how to implement fines. See, e.g.,
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The Supreme Court of Ohio, Office of Judicial Services, Collection of Fines and Court Costs (2014)
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Ohio no no Under what circumstances does a conflict of interest in the imposition or enforcement of court debt violate state law? This has not been considered to date
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Wyoming 1980 Wyo. Att'y Gen. Op. No. 80-09 (May 29, 1980) Opinion No. 80-09 (1980) What authority do county or municipal courts have to set fines or fees?
A municipality may adopt an ordinance providing for a lesser penalty than that provided for by the statutory code, which provides for mandatory jail sentence of one day for any
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person convicted of driving or being in control of a motor vehicle while under the influence of intoxicating liquor, etc.
There are cases which hold that municipalities may not enact their own penalties; and cases which hold to the contrary. The differences between the cases appear to turn on a
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combination of factors. In arriving at these diverse results, courts have recognized the following distinctions: felonies or misdemeanors; the presence or absence of home rule; the presence or absence of express municipal authority; and the presence or absence of clear and express language indicating state preemption. For the reasons hereafter stated, we conclude that municipalities may enact their own penalties for the crime of DWUI. Although some may believe the result anomalous, we find merit in the argument that had the legislature intended to impose mandatory jail sentences on our cities and towns, it would have done so by simple, clear, and express language. Municipalities have express powers to govern themselves and to regulate local affairs. Municipalities have been granted express power to regulate the use of streets by the legislature. Clear and express limitation of the power to regulate the use of streets does not appear in the statutes; nor has the legislature clearly and expressly indicated its desire to gain exclusive jurisdiction over DWUI in W.S. 31-5-233 (1977) or in Senate Enrolled Act No. 32. The provision of a lesser penalty in a municipal ordinance does [*12] not create conflict with a state law on the same subject, provided the crimes are of a similar class. Therefore, municipalities may regulate DWUI by passing ordinances with lesser penalties than provided by Senate Enrolled Act No. 32.
Fines and fees
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Wyoming 1985 Wyo. Att'y Gen. Op. No. 85-001 (April 19, 1985) 1985 Op. Atty Gen. Wyo. 1 Other applicable opinions The county sheriff or county may proceed against a person that is physically incarcerated for all medical bills when the person is incarcerated, regardless of the source of the injury.
In conclusion, then, the county sheriff is responsible for all medical bills incurred in the treatment of those persons who are in his custody, whether or not such persons have
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ever been physically incarcerated in the county jail and regardless of the source of the injury. The county commissioners must reimburse him for these costs. A person's indigency has no bearing upon the initial determination of responsibility. If the person is not indigent the sheriff or county may proceed against him in a suit for reimbursement. [*12] If the person is in fact indigent, the sheriff or county has no recourse for recovery against either the county hospital or the state welfare system.
Fines and fees
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Wyoming 1987 Wyo. Att'y Gen. Op. No. 87-006 (May 28, 1987) 1987 Op. Atty Gen. Wyo. 19 The clerk of court shall collect and disburse restitution payments.
DISCUSSION I Who should accept and disburse restitution payments from defendants? Section 7-13-312, W.S. 1977, (1986 Cum. Supp.), states in part, "Restitution payments shall be made to the office of the clerk
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unless otherwise ordered by the court." The Wyoming Supreme Court has stated that when the word 'shall' is employed, it is usually legally accepted as mandatory, Mau v. Stoner, 14 Wyo., 183, 83 P. 218, 219 (1905). In construing statutes, "Unless the context otherwise indicates, the use of the word 'shall' (except in its future tense) indicates a mandatory intent". 1A Sutherland Statutory Construction, § 25.04 [*2] p. 301 (4th Ed. Sands); Ginnavan v. Silverstone, 246 Md. 500, 229 A.2d 124, 127." Mayland v. State, Wyo., 568 P.2d 897, 899 (1977). Clearly, the legislature, by the word 'shall', intended the clerk of court to collect and disburse restitution payments. Upon an order of restitution by the sentencing court, it becomes mandatory for the office of the clerk to administer the restitution. "The clerk of each of the courts shall exercise the powers conferred and perform the duties enjoined upon him by statute and by the common law; and in the performance of his duties he shall be under the direction of his court." Section 5-7-101, W.S. 1977. Although the statute does not specifically provide for disbursement, where the legislature provided for the clerk to collect restitution it can be inferred that the legislature also intended the clerk to disburse restitution. Section 14-6-229(f)(i), W.S. 1977, allows a juvenile court to order a child to make restitution for any damage or loss caused by his wrongful act. Title 14 of the Wyoming Statutes does not specifically state a procedure for collecting and disbursing restitution payments from juveniles. However, Wyoming courts have [*3] held that statutes dealing with related subjects or having the same general purpose must be read in pari material in order to ascertain intelligent meaning and achieve uniformity. Kuntz v. Kinne, Wyo., 395 P.2d 286 (1964); Stringer v. Board of County Commissioners of Big Horn County, Who., 347 P.2d 197 (1960). Therefore, Section 14-6-229(f)(i), W.S. 1977, and Section 7-13-312, W.S. 1977, must be read in pari materia as to methods of collecting and disbursing restitution payments from both juvenile and criminal defendants.
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Wyoming 1987 Wyo. Att'y Gen. Op. No. 87-006 (May 28, 1987) 1987 Op. Atty Gen. Wyo. 19 After incarceration the board of parole has exclusive jurisdiction to administer the restitution imposed at sentencing by the court.
After incarceration the board of parole has exclusive jurisdiction to administer the restitution imposed at sentencing by the court. Section 7-13-424, W.S. 1977, provides the board of parole with
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a comprehensive scheme of parole restitution: the board shall provide for restitution on parole, may modify restitution imposed by the sentencing court, modify restitution imposed by the board or waive it entirely. Under § 7-13-413, W.S. 1977, the board is given the power to adopt rules and regulations governing the performance of duties of parole officers and the administration of the act. Thus it is reasonable that the probation and parole board could take on the responsibility of collecting and disbursing restitution if so ordered by the court.
Enforcement
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Wyoming 1987 Wyo. Att'y Gen. Op. No. 87-006 (May 28, 1987) 1987 Op. Atty Gen. Wyo. 19 Wyoming Crime Victims Compensation Commission, created through the Crime Victims Compensation Act, can collect restitution and authorize and order compensation payments be paid directly to a victim or third party.
Sections 1-40-101 through 1-40-119, W.S. 1977, (1986 Cum. Supp.) created the Crime Victims Compensation Act. (Laws 1985, ch. 213, § 1). Under this Act, restitution paid by a criminal defendant
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pursuant to §§ 7-13-307, through 7-13-315, W.S. 1977, goes directly to the Wyoming Crime Victims Compensation Commission after the Commission awards compensation to the victim. Such restitution is deposited in the Commission's account and used to set off against a judgment in favor of the state in a civil action. Section 1-40-112(c)(i), W.S. 1977, (1986 Cum. Supp.). [*7] The Commission reduces the amount of the compensation due the victim by the amount of restitution paid. Section 1-40-122(c)(ii). If restitution has been ordered, but not paid, the victim may be compensated by the Commission and shall reimburse the Commission when and if the defendant pays. Section 1-40-112, W.S. 1977 (1986 Cum. Supp.) was amended by the 1987 general session of the 49th Wyoming Legislature. A new subsection (g), effective May 22, 1987, states any payment of benefits to, or on behalf of a victim or other claimant under the Crime Victims Compensation Act creates a debt due the state by any person found by a criminal court to have committed a criminal act. Payment of the debt shall be a condition of probation, Laws 1987, ch. 119, § 1-40-112(g). In making payment of the debt a condition of probation or parole, the court or board of parole sets the schedule or amount of payments. The Commission has the authority to authorize compensation payments directly to the victim or to a third party. Section 1-40-108(d)(iii), W.S. 1977, (1986 Cum. Supp.). Similarly, the court could order direct payments to victims under the Restitution to Crime Victims Act, Sections 7-13-307 through 7-13-315, W.S. 1977. The victim's remedies for non-payment would be reporting the failure to the prosecuting attorney, the court or the probation and parole officer if applicable.
Revenue flow
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Virginia 2000 Va. Op. Att'y. Gen. (2000) Costs and fines dischargeable in bankruptcy Other applicable opinions
"Criminal costs, which may or may not be contingent upon sentence but are associated with conviction, and traffic fines are nondischargeable in Chapter 7 bankruptcy proceedings. Debt for restitution or
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criminal fine included in criminal sentence is nondischargeable in Chapter 13 bankruptcy; criminal fines not contingent upon sentence, traffic fines arising from traffic infractions, and civil traffic fines are dischargeable in Chapter 13 bankruptcies."
Enforcement
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Texas
Tex. Att'y Gen Opinion Op. No. JM-10 (1983),"""Inability to pay fees is an affirmative defense to the failure to pay them.""",ability to pay,,transparencyShould ability to pay be considered when imposing
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fines or fees or only when collecting fines or fees?,,,,,,fines What authority do county or municipal courts have to set fines or fees?,Municipal courts have authority to sets fines and fees so long as they do not exceed the maximum fine or fee permitted by the relevant statute. ,Tex. Att'y Gen. Op. GA-0593 (2008)
court may impose . . . an increase in the defendant's fine, up to a total fine that does not exceed the maximum fine for the offense for which the
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defendant was sentenced
Who has the burden of proof in an ability to pay determination? What is the standard of proof required? Burden of proof is on the defendant by preponderance of the evidence. But see Rusk v. State, 440 S.W.3d 694, 702 (Tex. App. 2013) fines and fees
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West Virginia W. Va. Code §48-1-304 W.V. Code
Are the same procedural protections that are required in criminal proceedings required in civil collection/contempt proceedings arising from criminal justice debt when those proceedings may result in incarceration? What if
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the proceedings may only result in additional fines or non-incarceration penalties?
In the case of a charge of contempt based upon the failure of the defendant to pay alimony, child support or separate maintenance, if the court or jury finds that
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the defendant did not pay because he was financially unable to pay, the defendant may not be imprisoned on charges of contempt of court.
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West Virginia
(1) State v. Stamm, 222 W. Va. 276, 278, 664 S.E.2d 161, 163 (2008) (2) State ex rel. Zirkle v. Fox, 203 W. Va. 668, 669, 510 S.E.2d 502, 503 (1998) (3)
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W. Va. Code Ann. § 61-11A-5
Case Law / W.V. Code Who has the burden of proof in an ability to pay determination? What is the standard of proof required?
(1) In criminal failure to meet obligation to minor (W. Va. Code § 61-5-29), the State has the burden of proof and the standard is beyond a reasonable doubt. (2)However,
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in civil contempt cases, if contemnor alleges financial inability to pay, he bears the burden of proving such inability to comply with a court mandate in order to avoid imprisonment. (3)Finally, in restitution determinations, the burden is on the defendant and the standard is a preponderance of the evidence.
Where a contemnor alleges financial inability to pay in a civil contempt proceeding, he bears the burden of proving such inability to comply with a court mandate in order to
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avoid imprisonment.
Ability to pay
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West Virginia (1)State v. Murrell, 201 W.Va. 648, 499 S.E.2d 870 (1997)(2) W. Va. Code §50-3-2. Case Law Should ability to pay be considered when imposing fines or fees or only when collecting fines or fees?
No. Ability to pay does not have to be considered when imposing fines or fees; certain fines and fees are required by law to be imposed (see, e.g., W. Va.
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Code §50-3-2.)
“An individual is not excused from the imposition of the maximum sentence allowed under a statute simply because he is indigent, even if that sentence includes the imposition of fines
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pursuant to statute.”
Ability to pay
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West Virginia W. Va. Code §8-10-1, 2; W. Va. Code § 62-4-16. W.V. Code What authority do county or municipal courts have to set fines or fees?
Municipal courts have power to impose fines, penalties and cost when not otherwise provided by charter provision or general law. However, municipal judges may substitute community service in lieu of
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sentence of incarceration or imposition of fine.
Fines and fees