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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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Nevada 1987 Nev. Op. Att'y Gen. 29 (1987) Execution of sentence and fine Should ability to pay be considered when imposing fines or fees or only when collecting fines or fees? court hearing must be held to determine a criminal defendant's ability to pay, before a criminal fine may be converted to an additional term of imprisonment. under Nevada law a court hearing must be held to determine a criminal defendant's ability to pay, before a criminal fine may be converted to an additional term of imprisonment. Ability to pay
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Nevada 1993 Nev. Op. Att'y Gen. 102 (1993) Fines, judgments, judges What authority do county or municipal courts have to set fines or fees? Courts may, in the exercise of their judgment, set fines and fees.
NRS 244.207, which authorizes counties to establish a collection division to collect fees and monetary sanctions imposed by courts that are ultimately owed to the county when collected, does not
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violate Nevada's separation of powers provision. Although all collection efforts can be deferred by the courts, the legislative intent underlying NRS 244.207(1)(f) is to not impede collection efforts pending court rulings at any level. There is nothing in this statutory provision which impedes the courts in the exercise of their inherent judicial power to enforce their judgments and orders. Therefore, NRS 244.207 is constitutional.
Fines and fees
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Nevada 1987 Nev. Op. Att'y Gen. 29 (1987) Criminal law - execution of sentence of imprisonment and fine Other applicable opinions
District Attorney may collect fines and fees when he prosecuted the case, attorney general may collect fines and fees when the attorney general's office prosecuted the case, and the Department
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of Prisons may only colelct fines and fees only when specifically granted the authority to do so by law.
Nevada statutes presently provide two methods for enforcement and collection of a criminal fine. See Nev.Rev.Stat. §§ 176.065 and 176.275. In both cases, the district attorney has authority to proceed
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to collect the fine on a criminal judgment where the district attorney has been the prosecutor. On the other hand, there is no clear authority in the office of the attorney general to undertake any action to collect the fines which have been imposed in criminal cases prosecuted by a district attorney. The attorney general would have authority to take action to enforce fines in cases prosecuted by the attorney general. See Nev.Rev.Stat. § 228.125. Similarly, the Department of Prisons has no specific authority to collect fines through deductions from wages or other property of offenders, or to institute any action against an offender to obtain the payment of a fine. The department is given specific authority to collect only certain debts owed by inmates, such as restitution or family support. See Nev.Rev.Stat. § 209.346 and 209.4811-209.4843; 209.352. Criminal fines are not included as a debt which may be collected by the Department of Prisons. This specific grant of authority to collect only certain debts implies a lack of authority to collect others. See Galloway v. Truesdell, 83 Nev. 13, 26, 422 P.2d 237 (1967). .
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Nevada 1984 Nev. Op. Att'y Gen. 35 (1984) Constitutional law - evidence-criminal procedure Only nonindigent persons may be the subject of recoupment measures
Where the legislature provides an express statutory system for recoupment of litigation costs from a convicted defendant the courts will generally enforce these provisions despite constitutional challenges. An implicit condition
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for the imposition of costs upon the convicted offender is that only nonindigent persons can be the subject of recoupment measures. These statutes do not have a chilling effect on the exercise of other constitutional rights under the fifth and sixth amendments.
Ability to pay
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Nevada 1987 Nev. Op. Att'y Gen. 29 (1987) Criminal law - execution of sentence of imprisonment and fine
District Attorney may collect fines and fees when he prosecuted the case, attorney general may collect fines and fees when the attorney general's office prosecuted the case, and the Department
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of Prisons may only collect fines and fees only when specifically granted the authority to do so by law.
Nevada statutes presently provide two methods for enforcement and collection of a criminal fine. See Nev.Rev.Stat. §§ 176.065 and 176.275. In both cases, the district attorney has authority to proceed
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to collect the fine on a criminal judgment where the district attorney has been the prosecutor. On the other hand, there is no clear authority in the office of the attorney general to undertake any action to collect the fines which have been imposed in criminal cases prosecuted by a district attorney. The attorney general would have authority to take action to enforce fines in cases prosecuted by the attorney general. See Nev.Rev.Stat. § 228.125. Similarly, the Department of Prisons has no specific authority to collect fines through deductions from wages or other property of offenders, or to institute any action against an offender to obtain the payment of a fine. The department is given specific authority to collect only certain debts owed by inmates, such as restitution or family support. See Nev.Rev.Stat. § 209.346 and 209.4811-209.4843; 209.352. Criminal fines are not included as a debt which may be collected by the Department of Prisons. This specific grant of authority to collect only certain debts implies a lack of authority to collect others. See Galloway v. Truesdell, 83 Nev. 13, 26, 422 P.2d 237 (1967). .
Fines and fees
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North Carolina N.C.A.G. Mar. 21, 1996 RE: Advisory Opinion; Exceptions to Statutory Exemptions for Execution of Judgment on Criminal Restitution Orders Other applicable opinions North Carolina is not barred from structuring a program to collect costs; however, the state's initiatives, must be narrowly drawn so as to avoid chilling the indigent's right to counsel
North Carolina [is not] barred from structuring a program to collect the amount it is owed from a financially-able defendant through reasonable and fairly administered procedures. The state's initiatives in
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this area naturally must be narrowly drawn to avoid either chilling the indigent's exercise of the right to counsel, or creating discriminating terms of repayment based solely on the defendant's poverty. Beyond these threshold requirements, however, the State has wide latitude to shape its attorneys fees recoupment or restitution program along the lines it deems most appropriate for achieving lawful state objectives. Id. at 123-124. (emphasis added.)
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North Carolina N.C.A.G. June 10, 1980 Criminal Law and Procedure; Sentences; Probation; Restitution; Bankruptcy Proceedings Person who received illegal gains as a part of criminal activity may not discharge legal financial obligations in bankruptcy
It would thus be against our statute and public policy to permit a defendant who has received illegal gains and who was ordered to make restitution as a condition of
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his sentence to vacate such conditions by a discharge in bankruptcy." People v. Mosesson, 356 N.Y.S. 2d 483, 484-85, (1974). See also: People on Inf. of Anerbach v. Topping Bros., 359 N.Y.S. 2d 985 (1974).
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Washington Wash. Att'y Gen. Op. 1993 NO. 11 (1993) Ability to pay - considered at imposition and collection of fines and fees Should ability to pay be considered when imposing fines or fees or only when collecting fines or fees? They must be considered both when imposing and collecting fines and fees
[A] county considering an ordinance authorizing a court to impose a multiple booking fee as part of a criminal sentence should heed constitutional considerations relating to the offender's ability to
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pay the fee. Some statutes providing for the repayment of costs incurred on behalf of a criminal defendant, also known as recoupment statutes, have been challenged as unconstitutional. The courts generally have upheld these statutes, provided that they contain certain safeguards. As set forth in Fuller v. Oregon, 417 U.S. 40, 40 L.Ed.2d 642, 94 S.Ct. 2116 (1974), and summarized in State v. Earls, 51 Wn.App. 192, 195–96, 752 P.2d 402 (1988), the safeguards are:(1) The requirement of repayment must not be mandatory;(2) Repayment may be imposed only upon convicted defendants;(3) Repayment may only be ordered if the defendant is or will be able to pay;(4) The financial resources of the defendant must be taken into consideration;(5) A repayment obligation may not be imposed if it appears there is no likelihood the defendant's indigency will end;(6) The convicted person must be permitted to petition the court for remission of the payment of costs or any unpaid portion thereof;(7) The convicted person cannot be held in contempt for failure to repay if the default was not attributable to an intentional refusal to obey the court order or a failure to make a good faith effort to make repayment.
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Washington Wash. Att'y Gen. Op. 1993 NO. 11 (1993) Authority to set fines/fees What authority do county or municipal courts have to set fines or fees? Counties are given extensive freedoms to set fines and fees for municipal violations, but cannot do so in fields in which the state preempts
Counties have broad authority under article 11, section 11 of the state constitution to act in furtherance of their police power. That section provides: “Any county, city, town or township
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may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.” The State Supreme Court has described this provision as follows: This is a direct delegation of the police power as ample within its limits as that possessed by the legislature itself. It requires no legislative sanction for its exercise so long as the subject-matter is local, and the regulation reasonable and consistent with the general laws. Bellingham v. Schampera, 57 Wn.2d 106, 109, 356 P.2d 292 (1960); see also Brown v. Yakima, 116 Wn.2d 556, 559, 807 P.2d 353 (1991).Under this provision, counties may enact ordinances regarding “all those measures which bear a reasonable and substantial relation to promotion of the general welfare of the people.” State v. Seattle, 94 Wn.2d 162, 165, 615 P.2d 461 (1980). County ordinances prescribing local offenses and punishments for them would constitute police power measures of the county under article 11, section 11 of the Washington Constitution. Such county ordinances may not, however, “conflict” with state laws. The courts have interpreted this to mean that counties may not legislate in a particular area when the state has preempted the field, or when the county legislation and state legislation on the same subject cannot be harmonized. Brown, 116 Wn.2d at 559.
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Washington See answer for 8 above Washington-Attorney General opinion What authority does the state supreme court have to impose binding state-wide rules on the imposition or collection of fees and fines? See answer for 8 above See answer for 8 above
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Washington Not answered Washington-Attorney General opinion Under what circumstances does a conflict of interest in the imposition or enforcement of court debt violate state law? Not answered Not answered
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Wisconsin 1995 WL 264119 (Wis.A.G.) Forfeitures What authority does the state supreme court have to impose binding state-wide rules on the imposition or collection of fees and fines? Unclear with regard to fines and fees, but uniformity regarding the recovery of forfeitures.
Section 799.01 provides in part: (b) Forfeitures. Actions to recover forfeitures except as a different procedure is prescribed in chs. 23, 66, 345 and 778, or elsewhere, and such different procedures
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shall apply equally to the state, a county or a municipality regardless of any limitation contained therein.
Revenue flow