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State Citation Question Brief answer Language from the opinion When does the case apply?
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New York People v. Knapp, 132 A.D.3d 1290, 1290, 17 N.Y.S.3d 231, 231 (N.Y. App. Div. 2015); People v. Travis, 64 A.D.3d 808, 809, 882 N.Y.S.2d 530, 532 (2009) Other applicable case law Consideration of ability to pay is not required when restitution order is nonprobationary "‘Consideration of defendant's ability to pay was not required because restitution was ordered as part of a nonprobationary sentence that included a period of incarceration as a significant component’” Ability to pay
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New York People v. Aloma, 92 A.D.2d 572, 572–73, 459 N.Y.S.2d 327, 328 (1983) Defendant must raise issue of ability to pay to preserve claim on appeal
"At sentencing, defense counsel merely noted that it was appropriate for the court 'to consider the defendant's ability to pay a fine' and stated in conclusory terms his belief that
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defendant did not have a 'substantial amount of money'. At no point, either before or after the imposition of sentence, was a request made by defendant or his counsel that a hearing be held on his ability to pay a fine"
Ability to pay
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New York People v. Ryan, 83 A.D.3d 1128, 1130, 920 N.Y.S.2d 806, 809 (2011) Failure to inform defendant of applicable surcharges prior to defendant's guilty plea, does not deprive defendant of opportunity to voluntarily weight available option and accept a plea.
Defendant's plea was not rendered involuntary by County Court's failure to mention, prior to the plea, the mandatory surcharge, crime victim's assistance fee and Vehicle and Traffic Law fee associated
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with his conviction. The Court of Appeals has held that such administrative fees “are not components of a defendant's sentence” (People v. Hoti, 12 N.Y.3d 742, 743, 878 N.Y.S.2d 645, 906 N.E.2d 373 [2009] ). Accordingly, the court's failure to pronounce these charges prior to the plea does not deprive a person of the opportunity to voluntarily, knowingly and intelligently weigh the available options and accept a plea
Fines and fees
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New York Cty. of Nassau v. Canavan, 1 N.Y.3d 134, 139–40, 802 N.E.2d 616, 621–22 (2003) Grossly disproportionate fines are unconstitutional. Disproportionality is determined by looking to the seriousness of the crime, available penalties, and resources of the defendant
The Excessive Fines Clause thus “limits the government's power to extract payments, whether in cash or in kind, as ‘punishment for some offense’ ” Forfeitures—payments in kind—are “fines” if they
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constitute punishment for an offense (see United States v. Bajakajian, 524 U.S. 321, 328, 118 S.Ct. 2028, 141 L.Ed.2d 314 [1998] ) . . . Inasmuch as a punitive forfeiture of an instrumentality of a crime “violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense” . . . In determining gross disproportionality, we consider such factors as the seriousness of the offense, the severity of the harm caused and of the potential harm had the defendant not been caught, the relative value of the forfeited property and the maximum punishment to which defendant could have been subject for the crimes charged, and the economic circumstances of the defendant.
Fines and fees
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Iowa State v. Van Hoff, 415 N.W.2d 647, 649 (Iowa 1987)
Under state constitutional or statutory law, what are the minimum requirements for a constitutionally adequate ability-to-pay determination? Include any guidance about the substantive standards to apply, the burden of proof,
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the sources of information that should be considered, and the timing of the determination (i.e. before imposition, before enforcement action, only if incarceration is threatened).
A determination of reasonableness ... is more appropriately based on [a defendant's] ability to pay the current installments than his ability to ultimately pay the total amount due. A determination of reasonableness ... is more appropriately based on [a defendant's] ability to pay the current installments than his ability to ultimately pay the total amount due. Ability to pay
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Iowa State v. Kurtz, 878 N.W.2d 469, 473 (Iowa Ct. App. 2016) A defendant who seeks to upset a restitution order has the burden to demonstrate either the failure of the court to exercise discretion or an abuse of that discretion. A defendant who seeks to upset a restitution order, however, has the burden to demonstrate either the failure of the court to exercise discretion or an abuse of that discretion. Ability to pay
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Iowa Goodrich v. State, 608 N.W.2d 774, 776 (Iowa 2000) Ability to pay must be determined before imposition.
Constitutionally, a court must determine a criminal defendant's ability to pay before entering an order requiring such defendant to pay criminal restitution pursuant to Iowa Code section 910.2. Section 910.2
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authorizes a court to order the offender to make restitution of court costs and court-appointed attorney's fees “to the extent that the offender is reasonably able to do so.
Ability to pay
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Iowa State v. Kurtz, 878 N.W.2d 469, 472 (Iowa Ct. App. 2016) Are there limits to the state’s ability to recoup fees for counsel under the state constitution?
The restitution ordered to the victim is made without regard to the defendant's ability to pay; however, other reimbursement and costs are ordered only to the extent that the defendant
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is reasonably able to pay.
The restitution ordered to the victim is made without regard to the defendant's ability to pay; however, other reimbursement and costs are ordered only to the extent that the defendant
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is reasonably able to pay. . . . Thus, before ordering payment for court-appointed attorney fees and court costs, the court must consider the defendant's ability to pay.
Ability to pay
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New Hampshire State v. Haas, 155 N.H. 612, 613–14, 927 A.2d 1209, 1210 (2007) Are there limits to the state’s ability to recoup fees for counsel under the state constitution? Statute requiring defendant to reimburse State for costs of his legal representation did not violate constitutional right to substantive due process
The purpose of the statute is to require that those who are financially able to do so, pay for a service that they received from the State. There is nothing
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illegitimate in the governmental interest in recouping costs expended for public defense whether or not the defendant is convicted. Moreover, the statutory scheme under RSA 604-A:9 is rationally related to this purpose in that it inquires into a defendant's *614 ability to pay and outlines procedures for recoupment orders, collection and appeal of such orders.
Fines and fees
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New Hampshire State v. Fowlie, 138 N.H. 234, 236–37, 636 A.2d 1037, 1039 (1994) Other applicable case law If the defendant then demonstrates sufficient bona fide efforts to repay his debt, alternatives to imprisonment must be considered by the court before probation may be revoked and imprisonment ordered
We held in Wallace that in a criminal contempt proceeding where a defendant introduces evidence of inability to pay, the State must prove beyond a reasonable doubt the defendant's intentional
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noncompliance with the court's order. Probation violation, however, is not a criminal offense, and revocation requires only a finding, by a preponderance of the evidence, of misplaced trust. . . The State's initial burden when, as here, it brings a petition, is to show that the defendant did not meet a condition of his sentence, in this case, the payment of restitution. The court then “must inquire into the reasons for the failure to pay.” Bearden, 461 U.S. at 672, 103 S.Ct. at 2072. If the defendant then “demonstrate[s] sufficient bona fide efforts to repay his debt,” id. at 671, 103 S.Ct. at 2072, alternatives to imprisonment must be considered by the court before probation may be revoked and imprisonment ordered. Id. at 672, 103 S.Ct. at 2072.
Ability to pay
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Tennessee
State v. Taylor, 70 S.W.3d 717, 723 (Tenn. 2002); State v. Smith, 898 S.W.2d 742, 747 (Tenn. Crim. App. 1994); Poole v. City of Chattanooga, No. E199901965COAR3CV, 2000 WL 310564,
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at *4 (Tenn. Ct. App. Mar. 27, 2000)
Under state constitutional or statutory law, what are the minimum requirements for a constitutionally adequate ability-to-pay determination? Include any guidance about the substantive standards to apply, the burden of proof,
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the sources of information that should be considered, and the timing of the determination (i.e. before imposition, before enforcement action, only if incarceration is threatened).
In imposing fines, courts must consider the defendant's ability to pay, prior criminal history, potential for rehabilitation, financial means, and other mitigating and enhancing factors. The burden is on the
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defendant to prove a present inability to pay.
“The trial court's imposition of a fine, within the limits set by the jury, is to be based upon the factors provided by the 1989 Sentencing Act, which include “the
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defendant's ability to pay that fine, and other factors of judgment involved in setting the total sentence.” Trial and appellate courts must also consider other factors, including prior history, potential for rehabilitation, financial means, and mitigating and enhancing factors that are relevant to an appropriate, overall sentence. The seriousness of a conviction offense may also support a punitive fine.” “[T]he burden is on the contemner to prove inability to pay”
Ability to pay
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Tennessee State v. Rose, No. C.C.A. 3, 1989 WL 22804, at *2 (Tenn. Crim. App. Mar. 15, 1989) (Daughtrey, J., concurring in part) Does the state’s separation of powers doctrine limit the ability of courts to impose or collect revenue?
To some degree. Only the legislature can establish that conduct is criminal and is subject to a fine. Courts cannot impose a fine for behavior that the legislature has not
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criminalized
The power to declare conduct to be criminal and to set forth the “gradation of penalties” for various offenses is “a matter wholly within the power and discretion of the
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legislature, which discretion, exercised within constitutional limits, is not subject to review by the courts.”
Fines and fees
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Tennessee State v. Smith, No. C.C.A. 86-121-III, 1986 WL 10893 (Tenn. Crim. App. Oct. 3, 1986)
Under state constitutional or statutory law, under what circumstances will the imposition or enforcement of fees or fines create conflicts of interest for courts, police departments, probation departments, or other
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law enforcement agencies?
This has not been explicitly addressed by courts. However, in the right-to-counsel context, Tennesee generally recognizes that conflicts of interests should be avoided where they are likely to occur. Furthermore,
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in at least one instance, the Tennesee Court of Criminal Appeals has recognized that conflicts might arise regarding fines and law enforcement.
“Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect
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each defendant's right to counsel.” "There is in the record an interesting letter from this assistant district attorney general to the defendants' attorney in which he asserts there is a conflict of interest because the state wished to talk with four of the accused, out of the presence of counsel, to explain the possibility of entering a “nolle” as to one or more of these persons and agreeing to a fine upon a guilty plea as to the others. If the state has no case against these people they could and should move to dismiss the charges without need to consult with them, either with or without counsel present."
Enforcement
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Tennessee State v. Miller, No. W200200640CCAR3CD, 2003 WL 1618070, at *3 (Tenn. Crim. App. Mar. 28, 2003) Are there limits to the state’s ability to recoup fees for counsel under the state constitution?
In making its ability-to-pay determination, the court can require a defendant to pay as much as it determines the defendant is able to pay. It can modify this order if
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there is a change in the defendant's financial circumstances.
"If the court appoints counsel to represent an accused in a felony case under this section or in a misdemeanor case as required by law, but finds the accused is
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financially able to defray a portion or all of the cost of the accused's representation, the court shall enter an order directing the party to pay into the registry of the clerk of such court such sum as the court determines the accused is able to pay. Such sum shall be subject to execution as any other judgment and may also be made a condition of a discharge from probation. The court may provide for payments to be made at intervals, which the court shall establish, and upon such terms and conditions as are fair and just. The court may also modify its order when there has been a change in circumstances of the accused."
Ability to pay
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Tennessee Poole v. City of Chattanooga, No. E199901965COAR3CV, 2000 WL 310564, at *2 (Tenn. Ct. App. Mar. 27, 2000) Other applicable caselaw Defendants can be imprisoned for failure to pay fines if the court determines the person being imprisoned has the ability to pay the fine. "[I]mprisonment for failure to pay a fine, which is allowed under T.C.A. § 29-9-104, so long as the person being imprisoned has the ability to pay the fine." Ability to pay
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Tennessee State v. Dubrock, 649 S.W.2d 602 (Tenn.Crim.App.1983) Defendant is entitled to ability-to-pay hearing whenever they claim indigency.
"We think it is clear from the plain meaning of the statute that an indigency hearing must be held whenever a criminal defendant claims that he is financially unable to
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retain counsel. Furthermore, the legislature has placed no limits on the word “whenever.” Thus, an indigency hearing is required at any point that the defendant claims indigency."
Ability to pay