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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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Alabama Ala. Att'y Gen. Op. 2003-086 Alabama-Attorney General opinion
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?
An indigent defendant facing contempt proceedings where he is sentenced to a term of imprisonment, which is suspended, is entitled to the appointment of counsel pursuant to Alabama v. Shelton.
Under Alabama v. Shelton, 122 S. Ct. 1764, 1767 (2002), a defendant is entitled to counsel if he: (1) is indigent; (2) has not waived the right to coun¬sel;
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and (3) is given a suspended sentence that may “end up in the actual depri¬vation of [his] liberty[.]” Based on the scenario you have presented, if the con¬temnor is indigent and, as it appears, he was not advised of and did not waive the right to counsel, he was entitled to an attorney at the time he pleaded guilty to the contempt charges. Consequently, he cannot be incarcerated on the con¬tempt charges. Under Shelton, appointment of counsel for indigent defendants is a con-stitutional prerequisite to the imposition of a conditional or suspended term of imprisonment. Although the contempt proceeding is considered “quasi-criminal” in nature and characterized as a “violation,” rather than a “crime” [see Ivey v. State, 698 So. 2d 179, 184 n.2 (Ala. Crim. App. 1995), aff’d, 698 So. 2d 187 (Ala. 1997)], because the defendant faces the possibility of incarceration [see ALA. CODE §13A-5-7 (1994) (stating that a defendant faces a term of imprisonment for both misdemeanors and violations)], he is entitled to counsel. See Lassiter v. Dep’t of Soc. Serv., 452 U.S. 18, 25 (1981) (recognition of right to appointed counsel in a civil proceeding “where the litigant may lose his physical liberty if he loses the litigation”); see also Opinion to Rex K. Rainer, Director, Department of Finance, dated July 23, 1982, A.G. No. 82-00465; Ridgway v. Baker, 720 F.2d 1409, 1413 (5th Cir. 1983).
Enforcement
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Alabama Ala. Att'y Gen. Op. 2002-036 Alabama-Attorney General opinion
The United States Supreme Court and the Supreme Court of Alabama have set forth minimal due process procedures to be afforded to a probationer in a probation revocation hearing. In a
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probation revocation hearing, the probationer must be given written notice of the claimed violations of probation, a written statement by the factfinder as to the evidence relied on, and the reasons for revoking his probation. Because review of probation revocation proceedings from district or municipal court is in the nature of certiorari, no appeal bonds would be set. The right to counsel in probation revocation proceedings is not absolute. The judge conducting the probation hearing should decide on a case-by-case basis whether due process requires that an indigent probationer be represented by counsel.
the Supreme Court of Alabama has set forth the requirements and guidelines that must be met for minimal due process to be accorded the probationer under Morrissey and Gagnon before
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his pro¬bation can be revoked. These guidelines include: 1. Written notice to the probationer of the claimed violations of probation. 2. Disclosure to the probationer of evidence against him or her. 3. Opportunity of probationer to be heard in per-son and to present witnesses and documentary evidence. 4. The right to confront and cross-examine adverse witnesses (unless the judge specifically finds good cause for not allowing confrontation). 5. A written statement by the judge as to the evi-dence relied on and reasons for revoking proba-tion. 6. The trial judge who granted probation may also conduct the revocation hearing. (We are not convinced that a detached and neutral judge should hold a revocation hearing. Judges preside over retrials. There appears to be no sound rea-son why the judge who granted probation could not fairly and impartially preside over revocation of probation hearing.) 7. We see no valid reason for having two hear¬ings if the probationer has been given sufficient notice of the charges and the evidence to be relied on for revocation of probation. If the pro¬bationer has not had time to prepare to refute the charges and evidence against him, he can have a timely continuance. 8. The judge conducting the probation hearing should decide on a case by case basis whether due process requires that an indigent probationer be represented by counsel. 9. It is not to be understood that proof beyond a reasonable doubt or the preponderance of the evidence are the standards to be applied in determining whether the probation should be revoked. The trial judge must only be reasonably satisfied from the evidence that the probationer has violated the conditions of his probation. Fiorella v. State, 40 Ala.App. 587, 121 So.2d 875 (1960). Armstrong v. State, 294 Ala. 100, 102-03, 312 So. 2d 620, 622-23 (Ala. 1975) (footnote omitted).
Enforcement
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Alabama Ala. Att'y Gen. Op. 1998-00043 Alabama-Attorney General opinion What authority do county or municipal courts have to set fines or fees?
A municipality may enter into a contract with a pri¬vate probation service to fulfill the needs of the munic¬ipal court. Furthermore, a municipal judge can assess a supervision fee upon
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each probationer as a condition of probation. This fee, however, cannot exceed the proba¬tioner's ability to pay.
Court costs are prescribed by statute and cannot be extended. See Attorney General's Opinion to Honorable Steven E. Blair, dated August 11, 1995, A.G. No. 95-00283. The municipal probation
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statute, however, gives the judge broad authority to place conditions on probation. ALA. CODE _ 12-14-13 (1995). The statute not only pro¬vides a listing of conditions that the judge may require the probationer to comply with, but also gives the judge the authority to require the probationer to comply with "any other conditions." Id. Therefore, it is the opinion of this Office that a municipal judge can assess a super¬vision fee upon each probationer as a condition of probation. Any condition placed on a probationer that requires the payment of a fee, fine, or restitution should not exceed the probationer's ability to pay. See ALA. R. CRIM. P. 27.1, Committee Comments.
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Alabama Ala. Att'y Gen. Op. 2012-027 Alabama-Attorney General opinion Other applicable opinions Non-indigent defendants may be incarcerated for failure to pay a fine after serving his or her sentence for the underlying offense
Subject to the limitations of Rule 26.11 of the Alabama Rules of Criminal Procedure, the court may place a nonindigent defendant in jail for failure to pay a fine after
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the defendant has completed his or her sentence or probation for the underlying offense. The defendant may serve time until the fine is paid or no longer than one day for each $15 of the fine, no longer than the maximum term of imprisonment for the offense, and no longer than one year if the offense is a felony.
Enforcement
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Alabama Ala. Att'y Gen. Op. 2002-336 Alabama-Attorney General opinion Other applicable opinions A municpality may publish, in a newspaper of local circulation, the names of those individuals with outstanding warrants for unpaid fines and the amount of those fines.
This Office has previously opined that municipal court records are public records to which the public has access with certain limitations as to confidential information contained therein. Opinion of
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the Attorney Gen-eral to the Honorable Bernice Kuykendall, Mayor, City of Cordova, dated September 2, 1987, A.G. No. 87-00303. As public records, the contents thereof, with certain limitations, may be published in the newspaper. Opinion of the Attorney General to the Honorable William T. Musgrove Jr., Attorney, City of Florence, dated October 6, 1988, A.G. No. 89-00003. The name, address, birth date, offense, and the amount of the past-due fine, as nonconfidential information contained in a municipal court record, may be published in a local newspaper as part of the collec-tion process. Id.
Enforcement
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Alabama Ala. Att'y Gen. Op. 2000-020 Alabama-Attorney General opinion Other applicable opinions
When a defendant is arrested for failure to appear or failure to pay, Rule 4.3(b)(3), ARCrP, requires that a judge or magistrate conduct an initial appearance hearing within 72 hours
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of arrest if the defendant has not obtained his or her release from jail.
Regarding circumstances where a defendant fails to pay court-ordered monies, Rule 26.11, ARCrP, provides that a judge must conduct a hearing to determine the financial means of a defendant for
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the payment of court-ordered fines and costs, and authorizes imprisonment for non-indigent defendants who fail to pay. Rule 27.2, ARCrP, authorizes a judge to order a defendant to pay court costs and fines as a condition of probation. As previously discussed, in cases involving breaches of con¬ditions of probation, including conditions requiring payment of fines, costs, restitution, or other court-ordered assessments, the court must con¬duct an initial appearance hearing upon the arrest of a probationer before the probationer is incarcerated. The court must inquire into the proba¬tioner’s financial status and determine whether the probationer is indigent since incarceration of an indigent for nonpayment is prohibited.
Enforcement
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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.
Revenue flow
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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)
Revenue flow
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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