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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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California 65 Cal. Op. Att'y Gen. 581 (1982) "May a penalty assessment be levied against a criminal defendant who does not have a present ability to pay such assessment?"
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?
Indigent defendants cannot be imprisoned solely because they cannot pay a penalty. However, when indigent defendants refuse or fail to meet the terms of an alternative option, they can be
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imprisoned, as the court sees them the same as a non-indigent defendant.
The effect of Antazo was to bar a trial judge from sending a defendant to jail or prison solely because he was unable to pay the monetary penalty. (In re
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Siegel (1975) 45 Cal.App.3d 843, 846.) However, as Antazo makes clear, such a penalty may nevertheless be imposed upon an indigent in certain circumstances (3 Cal.3d 100, 116):‘[O]ur holding is simply that an indigent who would pay his fine if he could, must be given an option comparable to an offender who is not indigent. When the indigent offender refuses to avail himself of such alternatives at the inception, or defaults or otherwise fails to meet the conditions of the particular alternative which is offered him without a showing of reasonable excuse, the indigent offender becomes in the eyes of the court exactly the same as the contumacious offender who is not indigent. When either of these conditions obtain the offender's indigency ceases to be dispositive and he may, consistently with the mandate of the equal protection clause, be relegated to ‘working out’ his fine by imprisonment.' 65 Cal. Op. Att'y Gen. 581 (1982).
Ability to pay
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California 66 Cal. Op. Att'y Gen. 440 (1983). Personal use of fines and fees prohibited Under what circumstances does a conflict of interest in the imposition or enforcement of court debt violate state law? Judges cannot receive fines or fees for personal use.
Article VI, section 17, of the California Constitution, provides: “A judge of a court of record may not practice law and during the term for which the judge was selected
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is ineligible for public employment or public office other than judicial employment or judicial office. A judge of the superior or municipal court may, however, become eligible for election to other public office by taking a leave of absence without pay prior to filing a declaration of candidacy. Acceptance of the public office is a resignation from the office of judge. “A judicial officer may not receive fines or fees for personal use.” 66 Cal. Op. Att'y Gen. 440 (1983).
Revenue flow
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Arizona State v. Robinson, 142 Ariz. 296, 297–98, 689 P.2d 555, 556–57 (Ct. App. 1984); 1987 Ariz. Op. Att'y Gen. 233 (1987) Arizona-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?
Arizona courts have only recognized that there must be an ability to pay proceeding where a party may be incarcerated. Such a determination should consider whether the probationer made good
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faith efforts to pay.
"In view of the United States Supreme Court's holding in Bearden v. Georgia, supra, we conclude that the trial court's order, revoking appellant's probation solely on the grounds that he
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failed to complete payments on the fine and restitution, without regard to his ability to pay, amounts to a deprivation of appellant's conditional freedom in violation of the fundamental fairness required by the Fourteenth Amendment.” “In considering a recommendation regarding a probationer who has not fully paid restitution and fines, it would be appropriate for a probation officer to consider, as guidelines, certain statutory requirements the courts must follow. A.R.S. § 13-901(E) authorizes a court to terminate a period of probation and discharge the probationer earlier than the term originally imposed only if it is in the interests of justice and “if the conduct of the defendant on probation warrants it.” A.R.S. § 13-810 establishes contempt sanctions for intentional refusal to make good faith efforts to pay restitution and also provides for modification of restitution orders if a defendant has been unable to pay restitution despite good faith efforts to do so. It would, therefore, also be appropriate for a probation officer to consider the extent of a probationer's ability to pay and whether the probationer made good faith payment efforts or intentionally refused to make efforts to pay in determining whether the defendant's conduct on probation warrants early termination and discharge from probation. The central purpose for all of these statutes is the protection of victims and a probation officer should always exercise his discretion with that purpose clearly in mind.”
Ability to pay
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Arizona 1989 Ariz. Op. Att'y Gen. 134 (1989) Arizona-Attorney General opinion Does allowing different municipalities to set their own indigency standards or fines/fees violate the equal protection afforded by the state’s constitution?
The Arizona Constitution allows the Arizona Supreme Court to allow local courts to make indigency standards, but it is unlikely that local municipal bodies can set such standards without legislative
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delegation.
"The Arizona Supreme Court's rulemaking power is derived from Ariz. Const. art. VI, § 5 which gives the supreme court the “[p]ower to make rules relative to all procedural matters
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in any court.” See also Barsema v. Susong, 156 Ariz. 309, 314, 751 P.2d 969, 974 (1988). The supreme court is authorized to delegate indigency determinations to the presiding judge of the superior court in each county by Ariz. Const. art. VI, § 11 which provides that the presiding judge of each county “shall exercise administrative supervision over the superior court and judges thereof in their counties, and shall have other duties as may be provided by law or by rules of the Supreme Court.”“The Arizona Supreme Court has authorized the presiding judge of each county to establish a procedure for the appointment of counsel by the Superior Court for each indigent person entitled to the appointment of counsel. Ariz. Const. art. VI, § 11 (emphasis added). We have not found any constitutional or statutory authority under which the presiding judge may delegate to a county the duty of making indigency determinations and assessments respecting the appointment of counsel in Superior Court criminal proceedings. Moreover, a county has only such powers as have been expressly or impliedly conferred by the legislature. Davis v. Hidden, 124 Ariz. 546, 548, 606 P.2d 36, 38 (App.1979); Maricopa County v. Black, 19 Ariz.App. 239, 241, 506 P.2d 279, 281 (1973). The powers of a county are exercised by and through its board of supervisors. A.R.S. § 11–201; see also Davis v. Hidden, 124 Ariz. at 548, 606 P.2d at 38; Ricca v. Bojorquez, 13 Ariz.App. 10, 13, 473 P.2d 812, 815 (1970). The powers and duties of the counties' boards of supervisors are set forth in A.R.S. § 11–251 and do not include indigency screening or determinations for the superior courts. Thus, Pima County has not been conferred such power by the Legislature.”
Ability to pay
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Arizona See, e.g., State v. Townsend, No. 1 CA-CR 11-0420, 2012 WL 3306960, at *3 (Ariz. Ct. App. Aug. 14, 2012) (choosing not to answer who has the burden of proof) Arizona-Attorney General opinion Who has the burden of proof in an ability to pay determination? What is the standard of proof required? Arizona Courts have not yet answered this question.
"The State contends that Townsend bore the burden of proving that she was unable to pay restitution. Even assuming that the State is correct, we conclude Townsend met that burden
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of proof here."
Ability to pay
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Arizona State v. Lopez, 175 Ariz. 79, 81, 853 P.2d 1126, 1128 (Ct. App. 1993) Arizona-Attorney General opinion Should ability to pay be considered when imposing fines or fees or only when collecting fines or fees? Case law has established that ability to pay need not be considered when imposing fines or fees.
"Therefore, although we will consider ability to pay as one factor toward a claim that a fine is disproportionate, the trial court does not have to explicitly consider the defendant's
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ability to pay when imposing a fine or its payment schedule"
Ability to pay
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Arizona Ariz. Op. Att'y Gen. No. I95-18 (Dec. 18, 1995) Arizona-Attorney General opinion What authority do county or municipal courts have to set fines or fees? Municipal Courts only have authority to collect the fines and fees which state statutes provide for.
"Only city councils of charter cities which are established under Ariz. Const. art. XIII, § 24 may establish fees and surcharges to be collected by city courts, if their charters
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or ordinances authorize them to do so.5 City courts are also subject to the administrative supervision of the Supreme Court. Ariz. Const. art. VI, § 3; Winter v. Coor, 144 Ariz. 56, 59, 695 P.2d 1094, 1097 (1985).Ordinary municipal corporations such as cities and towns may not, however, establish court fees and surcharges to be collected by municipal courts within their jurisdiction. Unlike charter cities, their authority derives solely from state statutes. Maricopa County v. Maricopa County Mun. Water Conservation Dist., 171 Ariz. 325, 830 P.2d 846 (App. 1991). In establishing various municipal court fees under A.R.S. § 22-404(B), the Legislature prohibited any others “[e]xcept as otherwise provided by law.” We have reviewed the statutes in Title 9 relating to the authority of non-charter cities and towns and found no statutes authorizing a city or town to set court fees and surcharges."
Fines and fees
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Arizona 1989 Ariz. Op. Att'y Gen. 134 (1989) Arizona-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? The Arizona Constitution grants the Supreme Court the right to impose binding state-wide rules for procedural matters related to fines and fees.
"The Arizona Supreme Court's rulemaking power is derived from Ariz. Const. art. VI, § 5 which gives the supreme court the “[p]ower to make rules relative to all procedural matters
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in any court.” "
Enforcement
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Mississippi 1981 WL 39784 (Miss.A.G.); Miss. Code Ann. § 99-19-20 (2) Mississippi-Attorney General opinion Does allowing different municipalities to set their own indigency standards or fines/fees violate the equal protection afforded by the state’s constitution? apparently not, because judges rule on indigency on a case-by-case basis
In the event an indigent is unable to pay his fine, a justice court judge may rely upon Section 99-19-20 of the Mississippi Code, 1972 , as amended, as an
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alternative procedure in working with indigents.
Ability to pay
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Mississippi 1994 WL 497828 (Miss.A.G.) Mississippi-Attorney General opinion Which fines and/or fees may be collected by a private vendor? Any kind of fine or fee, at least for municipalities.
Section 21-17-l, Mississippi Code of 1972, as amended, provides that a “. . .municipality may contract with a private attorney or privatecollection agent or agency to collect any type of delinquent payment owed to the municipality including, but
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not limited to, past due feesand fines.”
Enforcement
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Mississippi 1996 WL 224005 (Miss.A.G.) Mississippi-Attorney General opinion What authority do county or municipal courts have to set fines or fees? The court has the authority to impose "reasonable" fees for costs incurred by the court system. In response, see the Primeaux opinion which states that Mississippi Code Annotated Section 21-23-7(11) allows a municipal court to impose reasonable costs of court which could include a service of process fee. Fines and fees
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Mississippi 1996 WL 369442 (Miss.A.G.) Mississippi-Attorney General opinion Other applicable opinions Court costs that are statutorily mandated must be collected from defendant by the country clerk, whether a judge decides to impose them or not.
In response, we direct your attention to Mississippi Code Annotated Section 99-19-73 (Supp. 1995), which sets forth the standard state monetary assessments for criminal violations. Specifically, subsection (7) states: If a
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fine or other penalty imposed is suspended, in whole or in part, such suspension shall not affect the state assessment under this section. No state assessment imposed under the provisions of this section may be suspended or reduced by the court. Based on the above quoted statute, the state assessment court costs are collected by the clerk of the court regardless of whether the judge imposes them or not. There are several statutorily imposed fees or costs which are to be collected regardless of whether the judge imposes them or not, e.g. Mississippi Code Annotated Section 19-7-31 allows the boards of supervisors to impose a court cost for the support of a public county law library in their respective counties. This court cost is automatically assessed regardless of whether the judge imposes it or not. Also, upon conviction for writing a bad check, Section 97-19-67(4) directs the court to impose a fee in the amount of up to 85% of the face value of a bad check in addition to any other fine, fee, cost or penalty imposed by the judge. Section 37-26-9(4) imposes a supplemental court education and training cost in all criminal cases where a fine of $10 or more is imposed by the judge. The general rule is that if the cost is statutorily imposed, there is no need for the judge to impose the cost. However, from time to time, a court cost may be incurred in which there is no statutory imposition. In such a case it is within the judge's discretion to impose such a court cost on the defendant.
Enforcement
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Florida AGO 99-03 Municipality, contract with collection agency Which fines and/or fees may be collected by a private vendor? Liens (at least) A municipality may enter into an agreement with a collection agency to compromise code enforcement board liens and pursue collection through litigation. Enforcement
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Florida AGO 2008-47 Courts, funds to renovate courthouse tower/café Other applicable opinions
the tower of the Sarasota County Courthouse as an integral structural component of the courthouse facility may be renovated using funds derived from section 318.18(13), Florida Statutes. Moreover, where the
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county has made the decision to include a café in the county courthouse facility for use by court personnel and the general public, revenue collected pursuant to section 318.18(13), Florida Statutes, to fund court facilities may be used for the renovation of such space.
Revenue flow
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Florida AGO 2008-46 Counties -- Court Costs Other applicable opinions
Accordingly, it is my opinion that revenues generated by section 939.185, Florida Statutes, may be used to fund an alternative sanctions coordinator position created pursuant to sections 984.09 and 985.037,
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Florida Statutes. Moreover, it is ultimately within the county’s discretion whether to fund a "local requirement" designated by the chief judge of the circuit.
Revenue flow
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Florida AGO 2007-52 Clerks of Court, debts referred to collection agent Other applicable opinions
In light of the language of sections 28.246 and 28.35, Florida Statutes, it is my opinion that the clerk of court is not authorized to charge a fee to the
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collection agent or attorney for support services provided by the clerk when an unpaid amount owed to the clerk is referred to an agent for collection. Rather, any administrative support costs incurred by the clerk after referring unpaid fines and fees for collection should most appropriately be paid from "filing fees, service charges, court costs, and fines" as provided in section 28.35(4)(a), Florida Statutes.
Revenue flow
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Florida AGO 2002-61 Additional $2 cost for criminal justice education Other applicable opinions
Thus, this office concluded that the additional costs collected under section 943.25(13), Florida Statutes (1993), could only be used for courses that relate directly to criminal justice education and training
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courses and may not be used to fund general education for law enforcement officers, except in those instances where completion of general education courses is a requirement for successful completion of a criminal justice degree program.
Fines and fees
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Florida AGO 2002-10 Local governments' assessment of court costs Other applicable opinions
Accordingly, it is my opinion that the assessment authorized in section 938.15, Florida Statutes, is payable to the county or municipality by an individual who has been convicted of a
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violation of the respective county or municipal ordinance and the court has included payment of the assessment in its order.
Fines and fees
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Florida AGO 2001-40 Teen court, mandatory court cost assessment Other applicable opinions
In sum: 1. Section 938.19, Florida Statutes, does not authorize the county to choose the offenses for which the $3 assessment authorized by section 938.19, Florida Statutes, may be imposed; rather,
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the statute specifies those offenses for which the assessment will be imposed. 2. Section 938.19, Florida Statutes, requires that funds received from the $3 assessment be deposited into an account specifically for the operation and administration of the teen court and does not authorize application of the funds to other programs or to the county's general revenue fund.
Fines and fees
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Florida AGO 96-38 Clerks, collection of costs for crimes compensation Other applicable opinions
1. The additional costs authorized in section 960.20, Florida Statutes, are assessed on a per-case, rather than a per-count, basis. Therefore, such costs may not be assessed for each count
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for which the person pleads guilty or nolo contendere or is convicted or adjudicated delinquent. 2. The date on which the offense occurs determines the amount of additional costs. Thus, a person who commits a crime prior to July 1, 1992, but is convicted of the crime after that date would be assessed the amount authorized by section 960.20, Florida Statutes, on the date of the offense. 3. If the offense for which probation has been revoked constitutes a felony, misdemeanor, delinquent act, or criminal traffic offense and the probationer is adjudicated guilty of this offense or pleads no contest to the charges, the additional costs may be imposed. However, if the offense for which probation is revoked results only in the imposition of a sentence that was withheld when the defendant was placed on probation, section 960.20, Florida Statutes, does not authorize the imposition of such additional costs. 4. Section 960.20, Florida Statutes, requires that the court must state on the record in detail the reasons for waiving the assessment of additional costs.
Fines and fees