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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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Georgia 1989 Ga. Op. Atty. Gen. 160 (Ga.A.G.), Ga. Op. Atty. Gen. No. U89-8, 1989 WL 264820 Authority to delegate power of collection of probation supervision services to private actors Which fines and/or fees may be collected by a private vendor? When it comes to probation services at least, County governments may not enter into agreements with private corporations for probation services unless authorized by legislation.
O.C.G.A. § 42–8–43 provides that those county probation systems in existence on February 8, 1956, would not be affected by the passage of the State-wide Probation Act, and further provides
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that ‘[t]he personnel of the [county] system shall continue to be appointed and employed under the same procedure as used prior to February 8, 1956, and the system shall be financed under the same method as it was financed prior to February 8, 1956.’ Based on this provision, it is my opinion that any remaining county probation systems could not be converted into a system operated by a private corporation without legislative authority; therefore, the Community Corrections Corporation's proposal could not be accepted by any county still operating a county probation system.
Fines and fees
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Georgia 1983 Ga. Op. Atty. Gen. 247 (Ga.A.G.), Ga. Op. Atty. Gen. No. U83-29, 1983 WL 41746 Fees for feeding prisoners Under what circumstances does a conflict of interest in the imposition or enforcement of court debt violate state law? In the limited context of feeding prisoners, sheriffs may not be paid fees for feeding prisoners in their custody, either directly or via a contract entered into after competitive bidding.
Finally, you suggest that such a contract might create a conflict of interest because the sheriff's legal duty to care for county prisoners would be at odds with his financial
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interest in his contract. I agree with your conclusion. To the extent that the sheriff would be responsible to supervise the performance of one contracting to feed county prisoners, this conflict of interest, standing alone, would make the sheriff ineligible to enter into such a contract. An analogous situation was addressed in Op. Att'y Gen. U83-8 (copy attached), and it was concluded that a county commission chairman could not contract to supply groceries to his county. Use of a sealed bid procedure to award the contract was found not to avoid the conflict of interest because the chairman would still be required to supervise performance under the contract. After Op. Att'y Gen. U83-8 was issued, the General Assembly acted to authorize certain transactions between political subdivisions and their officers and employees, including sales of personal property made pursuant to sealed competitive bids. O.C.G.A. § 16-10-6(a)(2)(B) (Ga. Laws 1983, pp. 1326, 1339). The new Code section does not affect your question because in my view the feeding of prisoners does not constitute the sale of personal property to the county.
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Georgia Ga. Op. Atty. Gen. No. U92-4 (Ga.A.G.), 1992 WL 478489 Georgia-Attorney General opinion Other applicable oppinions
[A] sheriff must accept into custody those individuals convicted of criminal offenses who have been sentenced to a term of incarceration, and that the sheriff may not require payment of
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a surcharge as a condition precedent to service of the sentence.
Pretermitting any discussion of the sheriff's authority to impose such a surcharge, Georgia law makes clear that the sheriff may not condition service of the sentence upon payment of the
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surcharge. The sheriff, by virtue of his office, is jailer of the county. O.C.G.A. § 42–4–1(a). As such, he has a legal duty to take into custody those convicted of crimes and sentenced to a term of imprisonment. O.C.G.A. § 42–4–12. The refusal to do so is a felony offense. Id. Further, a writ of mandamus may issue to compel performance of this duty. Griffin v. Chatham County, 244 Ga. 628, 629 (1979). For the foregoing reasons, it is my unofficial opinion that a sheriff must accept into custody those individuals convicted of criminal offenses who have been sentenced to a term of incarceration, and that the sheriff may not require payment of a surcharge as a condition precedent to service of the sentence.
Fines and fees
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Georgia 1985 Ga. Op. Atty. Gen. 203 (Ga.A.G.), Ga. Op. Atty. Gen. No. U85-32, 1985 WL 68946 Collection of public defender fees from indigent defendants Superior court's ability to collect fees from an indigent defendant for representation by a public defender is limited to the amount that indigent defendant can afford to reimburse.
In my opinion, O.C.G.A. § 17-12-10(c) governs the extent to which reimbursement to the county may be required from indigent defendants. The power to tax the costs of representation by
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a public defender is, under the statute, limited ‘[t]o the extent that [the defendant] . . . is able to provide for the employment of an attorney, the other necessary services and facilities of representation, and court costs . . .’ Thus, the court would not be authorized to order reimbursement beyond the indigent defendant's ability to pay for the services rendered by the public defender. However, this does not exclude partial reimbursements where the defendant is capable of paying some portion of the expenses of representation, as where, for example, the defendant is neither destitute nor a pauper. O.C.G.A. § 17-12-10(a)…. …In summary, it is my unofficial opinion that under O.C.G.A. § 17-12-10(c) a superior court may tax additional amounts onto any fine or restitution where a criminal defendant was represented by a full or part-time public defender, but the court may only order such payments or reimbursements to the extent of the individual defendant's financial capability to pay.
Fines and fees
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Georgia 1987 Ga. Op. Atty. Gen. 96 (Ga.A.G.), Ga. Op. Atty. Gen. No. U87-4, 1987 WL 119551 Fees and expenses of medical examining teams and hospital committees Fees for psychiatric examinations performed on defendant in a criminal case should not be imposed on defendant but on the county treasury.
In neither the civil nor criminal context is the cost of these examinations and testimony placed on the person to be examined, or even on the person or entity initiating
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the legal action. The mental retardation comprehensive evaluating teams are statutorily required to be provided by the State Department of Human Resources. O.C.G.A. § 37-4-40. In the criminal context, psychiatric examinations of defendants are properly a charge upon the county treasury, whether required to benefit the defendant, Ake v. Oklahoma, 470 U.S. 68 (1985), or as an aid to the court during trial or prior to sentencing, O.C.G.A. §§ 17-7-130.1, 17-7-131; Lingo v. State, supra. Op. Att'y Gen. U85-29 29. In regard to the latter, the Georgia Supreme Court has said that “the psychiatrist appointed by the court for a sanity examination of the defendant may not be regarded as a prosecution witness, but is instead a witness for the court.” Massey v. State, 226 Ga. 703, 704 (1970). Nor is his testimony subject to exclusion by virtue of the defendant's psychiatrist-patient privilege. Pierce v. State, 243 Ga. 454 (1979).
Fines and fees
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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.
Revenue flow
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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