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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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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 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.
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Montana 49 Mont. Op. Att'y Gen. No. 18, 2002 WL 1009805 Montana-Attorney General opinion What authority do county or municipal courts have to set fines or fees?
The Montana Constitution and Montana law authorize amunicipal court judge to release a defendant on a time-pay bail bond, defined as a bond in an amount set by the judge to be
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paid in installments.
If the court finds some form of bail necessary, however, Mont. Code Ann. § 46-9-301, provides more specific factors for a court to consider. These factors include, among other matters
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not related to the safety of the victim and the community, that the amount shall be “not oppressive,” and that the amount shall be “considerate of the financial ability of the accused.” Id., §§ 46-9-301(4) and (6). The time-pay bail bonds system comports with these requirements.The Montana Constitution and Montana law authorize a municipal court judge to release a defendant on a time-pay bail bond, defined as a bond in an amount set by the judge to be paid in installments.
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New York 2004 N.Y. Op. Atty. Gen. No. 14 (N.Y.A.G.), 2004 WL 3007300 New York-Attorney General opinion What authority do county or municipal courts have to set fines or fees?
A village may impose both civil and criminal penalties for violations of local zoning laws, although criminal penalties must be consistent with the designation and classification of offenses under the Penal Law. A
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village may provide for increased penalties for subsequent convictions, but may not designate any such offense as a felony. The disgorgement of profits upon conviction of a zoning violation may be obtained through an alternate sentence under the Penal Law, or through enactment of a carefully crafted civil forfeiture law.
"In sum, we conclude that the Village is authorized under its home rule powers to provide for both civil and criminal penalties for violation of local zoning laws, but that criminal penalties must
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be consistent with the designation and classification of offenses under the Penal Law. We further conclude that the Village may provide for increased penalties for subsequent convictions under its zoning code, but may not designate any such offense as a felony. Finally, we are of the opinion that disgorgement of profits upon conviction of a zoning violation may be obtained through the use of an alternate sentence as authorized by the Penal Law, or through enactment of a carefully crafted civil forfeiture law."
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