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Below are the attorney general opinions that meet your search criteria.
6 Results
State | Citation | Description/Statute Name | Question | Brief answer | Language from the opinion | When does the case apply? | |
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West Virginia |
(1) State v. Stamm, 222 W. Va. 276, 278, 664 S.E.2d 161, 163 (2008)
(2) State ex rel. Zirkle v. Fox, 203 W. Va. 668, 669, 510 S.E.2d 502, 503 (1998)
(3) + See moreW. Va. Code Ann. § 61-11A-5
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Case Law / W.V. Code | Who has the burden of proof in an ability to pay determination? What is the standard of proof required? |
(1) In criminal failure to meet obligation to minor (W. Va. Code § 61-5-29), the State has the burden of proof and the standard is beyond a reasonable doubt. (2)However, + See morein civil contempt cases, if contemnor alleges financial inability to pay, he bears the burden of proving such inability to comply with a court mandate in order to avoid imprisonment. (3)Finally, in restitution determinations, the burden is on the defendant and the standard is a preponderance of the evidence.
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Where a contemnor alleges financial inability to pay in a civil contempt proceeding, he bears the burden of proving such inability to comply with a court mandate in order to + See moreavoid imprisonment.
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Ability to pay |
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West Virginia | (1)State v. Murrell, 201 W.Va. 648, 499 S.E.2d 870 (1997)(2) W. Va. Code §50-3-2. | Case Law | Should ability to pay be considered when imposing fines or fees or only when collecting fines or fees? |
No. Ability to pay does not have to be considered when imposing fines or fees; certain fines and fees are required by law to be imposed (see, e.g., W. Va. + See moreCode §50-3-2.)
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“An individual is not excused from the imposition of the maximum sentence allowed under a statute simply because he is indigent, even if that sentence includes the imposition of fines + See morepursuant to statute.”
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Ability to pay |
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West Virginia | W. Va. Const. art. VIII, § 3 | State Constitution | What authority does the state supreme court have to impose binding state-wide rules on the imposition or collection of fees and fines? | West Virginia's Constitution allows the Court of Appeals to impose binding state-wide rules. No on point Attorney General Opinion. |
“The court shall have power to promulgate rules for all cases and proceedings, civil and criminal, for all of the courts of the State relating to writs, warrants, process, practice + See moreand procedure, which shall have the force and effect of law.”
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Enforcement |
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South Carolina | S.C.A.G. Oct. 8, 2012 (informal opinion) | Civil contempt |
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 + See morethe proceedings may only result in additional fines or non-incarceration penalties?
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No - the rationale for punishment based on contempt proceedings rather than criminal proceedings is different |
The principal purpose of criminal contempt is punishment. In civil contempt, however, the contemnors "carry the keys of prison in their own pockets" as the contempt serves to secure "compliance + See morewith judicial decrees." 287 S.E.2d at 919. The Court concluded that "[t]he conditional nature of the imprisonment, based entirely upon appellant's refusal to pay respondent's expenses, justified the civil contempt proceeding without a jury trial.
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Enforcement |
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South Carolina | Robert L. McCrudy, S.C.A.G. Dec. 14, 1999 (informal opinion) | Collection by private vendor | Which fines and/or fees may be collected by a private vendor? | Collection of criminal fines and fees are the job of the magistrate |
With respect to the physical collection and handling ofpublic monies such as fines, restitution, etc. such should be done exclusively by the court and its officers rather than by the + See morecompany, in the absence of legislative authorization therefore.
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Enforcement |
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South Carolina | 1987 S.C. Op. Att'y Gen. 255 (1987) | Bearden | Should ability to pay be considered when imposing fines or fees or only when collecting fines or fees? | Not answered - however, cannot implement a surcharge if defendant fails to pay fee |
In the circumstances where an indigent fails to comply with the schedule of payments established by the court and the court determines that the indigent has wilfully refused to pay + See moreor failed to make bona fide efforts to pay, the court is authorized to imprison the defendant for contempt. As provided in Section 17–25–350, where part of the fine has been paid, the imprisonment cannot exceed the remaining pro rata portion of the sentence. I am unaware of any basis for a court to impose a fine in addition to the sentence originally imposed.
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Ability to pay |