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State Citation Question Brief answer Language from the opinion When does the case apply?
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Alaska
Jones v. State, No. A-2629, 1989 WL 1595378, at *1–2 (Alaska Ct. App. Feb. 1, 1989) (quoting Zimmerman v. State, 706 P.2d 343, 344 (Alaska App.1985); Karr v. State, 686
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P.2d 1192, 1197 (Alaska 1984)); Alaska Stat. Ann. § 12.55.051
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).
Alaska courts must conduct a "serious" inquiry, considering the defendant's assets, as well as the defendant's past and future earning capacity. Statutory law requires the defendant to prove by a
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preponderance of the evidence an inability to pay.
"Under AS 12.55.035, the trial court is under a mandatory duty to consider a defendant's earning capacity in connection with the imposition of any fine. The court's inquiry must be
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“serious” and should include an analysis of any assets that the defendant presently owns, as well as his past and future earning capacity. A determination of a defendant's future earning capacity necessarily requires the court to make:preliminary findings of fact regarding [the defendant's] mental and physical health, [his] education, [his] job skills if any, the kinds of jobs which [he] has held in the past and is capable of performing in the future and the availability of such jobs in the communities in which [the defendant] will likely reside. Once these findings are made, the court is in a position to determine [the defendant's] likely future earnings and the extent to which those earnings will cover [his] likely future expenses for food, clothing and shelter and leave [him] a surplus out of which to pay restitution. The court must fix the amount of the fine and the terms of payment to fall within the realistic limits of the defendant's earning capacity. Failure to make the appropriate inquiry and findings requires automatic reversal and remand." " If, at a hearing under this subsection, the defendant proves by a preponderance of the evidence that the defendant will be unable through good faith efforts to satisfy the order requiring payment of the fine or restitution, the court shall modify the order so that the defendant can pay the fine or restitution through good faith efforts. The court may reduce the fine ordered, change the payment schedule, or otherwise modify the order. The court may not reduce an order of restitution but may change the payment schedule."
Ability to pay
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Alaska Alaska Const. art. IV, § 15; Alaska Stat. Ann. § 22.05.020(c); Alaska Stat. Ann. § 28.05.151(a) Does the state’s separation of powers doctrine limit the ability of courts to impose or collect revenue?
The Alasaka Constitution allows the Supreme Court to promulgate rules governing practice and procedure. Furthermore, Alaska Statutory Law allows the Supreme Court to prescribe the fees which may be charged
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for legal services. Indeed, the Supreme Court can also determine which fines and fees may be collected without a court disposition
"The supreme court shall make and promulgate rules governing the administration of all courts. It shall make and promulgate rules governing practice and procedure in civil and criminal cases in
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all courts. These rules may be changed by the legislature by two-thirds vote of the members elected to each house." "The supreme court may prescribe by rule the fees to be charged by all courts for judicial services." "The supreme court shall determine by rule or order those motor vehicle and traffic offenses, except for offenses subject to a scheduled municipal fine, that are amenable to disposition without court appearance and shall establish a scheduled amount of bail, not to exceed fines prescribed by law, for each offense. A municipality shall determine by ordinance the municipal motor vehicle and traffic offenses that may be disposed of without court appearance and shall establish a fine schedule for each offense. "The supreme court shall determine by rule or order those motor vehicle and traffic offenses, except for offenses subject to a scheduled municipal fine, that are amenable to disposition without court appearance and shall establish a scheduled amount of bail, not to exceed fines prescribed by law, for each offense. A municipality shall determine by ordinance the municipal motor vehicle and traffic offenses that may be disposed of without court appearance and shall establish a fine schedule for each offense."
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Alaska Alaska Stat. Ann. § 39.50.090
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?
No such instance is apparent under the case law. But statutory law prohibits using an official position for obtaining personal financial gain. As such, it is likely impermissible for courts
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or law enforcement to impose or enforce fines or fees when there is a personal interest at stake (as opposed to an institutional interest).
"A public official may not use the official position or office for the primary purpose of obtaining personal financial gain or financial gain for a spouse, dependent child, mother, father,
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or business with which the official is associated or in which the official owns stock. A public official other than an elected or appointed municipal official may not use the official's position or office for the primary purpose of obtaining financial gain for the official's domestic partner."
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Alaska Alaska R. Crim. P. 39; State v. Albert, 899 P.2d 103, 115, 123 (Alaska 1995) Are there limits to the state’s ability to recoup fees for counsel under the state constitution?
The ability to recoup fees is virtually limitless. If the Defendant is convicted of a crime, then the defendant is civilly liable for the costs of counsel regardless of ability
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to pay.
"Rule 39(b) makes all criminal defendants who are provided court-appointed counsel liable upon conviction for the cost of representation. This liability attaches without regard to an individual defendant's financial ability
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to repay. The liability automatically attaches in the form of a civil judgment entered without a prior request or demand for payment. Upon a defendant's conviction, the trial court must issue in all cases, sua sponte, a notice of judgment. . . . Criminal Rule 39 does not violate the equal protection guarantee of the Alaska Constitution."
Ability to pay
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Alaska Cont'l Ins. Companies v. Bayless & Roberts, Inc., 548 P.2d 398, 410 (Alaska 1976) Other applicable caselaw The legislature cannot impede the contempt power
"Thus, statutory enactments which endeavor to limit the necessary contempt powers of the Alaska superior and supreme courts are not binding. Nevertheless, statutory enactments, which reasonably regulate the contempt power,
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as representing the opinion of a coequal branch of the government, should be given effect as a matter of comity unless they fetter the efficient operation of the courts or impair their ability to uphold their dignity and authority."
Enforcement
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Alaska
Dodge v. Municipality of Anchorage, 877 P.2d 270, 272 (Alaska Ct. App. 1994) (quoting State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975); Collins v. State, 778 P.2d 1171, 1175
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(Alaska App.1989))
Defendants generally should not be sentenced to pay the maximum fine unless the court determines that the defendant is the "worst offender."
Generally, the maximum sentence should not be imposed “without some foundation for characterizing a defendant as the worst type of offender.” A worst offender finding may be based on the
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defendant's background, the seriousness of the current offense, or both."
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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 Mexico State ex rel. Dept. of Human Services v. Rael, 642 P.2d 1099, 1104 (N.M. 1982)
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).
The New Mexico Supreme Court has recognized that in a civil contempt proceeding, defendants are not entitled to court-appointed counsel.
"The trial court is the proper evaluator of the need for counsel on a case-by-case basis, considering factors such as the indigent's ability to understand the proceeding, the complexity of
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the legal and factual issues, and the defenses that might be presented. We hold that the trial court must make a case-by-case determination, based on articulated reasons, whether fundamental fairness requires the appointment of counsel to assist an indigent defendant in a nonsupport civil contempt proceeding, and may, in the exercise of its sound discretion, appoint counsel in the proper case."
Enforcement
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New Mexico State v. Anaya, 76 N.M. 572, 577 (1966)
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).
The defendant must make a reasonable showing that he is unable to pay, then the court must inquire into the showing made.
"The burden of proceeding rests first upon the defendant. It is proper for the trial court to require defendant to make a reasonable showing that he is unable to employ
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counsel. Depending on the facts, more than one inquiry may be necessary. In Elliott v. District Court In & For City & County of Denver, 402 P.2d 65 (Colo.1965), the defendant informed the court that he had an expectancy of money. When the expectancy failed to materialize, he brought it to attention of the court at a later date. When defendant makes a reasonable showing of indigency in support of his request for court-appointed counsel, the trial court has a duty under s 41—11—2, N.M.S.A. 1953, to inquire into the facts claimed by defendant. This does not require an independent inquiry by the court. It does require sufficient questioning by the court to enable the court either to decide the question of indigency at that time or to direct that defendant is to report further to the court on the question of obtaining counsel.”
Ability to pay
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New Mexico State v. Lack, 650 P.2d 22, 29 (Ct. App. N.M. 1982); State v. Anaya, 76 N.M. 572, 577 (1966)
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).
Defendants must be granted notice, an opportunity to dispute the amount, and an opportunity to demonstrate the inability to pay. If the defendant makes a showing of indigency, the court must
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inquire into whether the defendant is indigent. This does not require an independent inquiry, but it does require sufficient questioning to enable the court decide whether the defendant is indigent.
"Implicit in the provisions of s 31-17-1, supra, requiring the preparation of a restitution plan, is the giving of notice to defendant of the amount of restitution claimed, the opportunity
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to dispute the amount thereof, and inquiry into defendant's ability to pay restitution. Due process is satisfied by affording the defendant an opportunity to challenge the amount of restitution claimed by the victim when there is a factual basis in the record to support the trial court's calculations as to the proper sum of restitution" “When defendant makes a reasonable showing of indigency in support of his request for court-appointed counsel, the trial court has a duty under s 41—11—2, N.M.S.A. 1953, to inquire into the facts claimed by defendant. This does not require an independent inquiry by the court. It does require sufficient questioning by the court to enable the court either to decide the question of indigency at that time or to direct that defendant is to report further to the court on the question of obtaining counsel.”
Ability to pay
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New Mexico State v. Mabry, 630 P.2d 269, 273 (N.M. 1981)
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).
Yes. Only the legislature can establish penalties for criminal behavior.
"[T]he scope of our review is here limited to whether the Legislature had the power to enact these statutes. It has long been recognized in this state that it is
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solely within the province of the Legislature to establish penalties for criminal behavior."
Fines and fees
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New Mexico State v. Holland, 91 N.M. 386, 387 (N.M. Ct. App. 1978)
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).
The imposition of a fine or fee is valid only to the extent it conforms with the sentences that are permissible under statutory law.
"A basic proposition of New Mexico law is that the fixing of penalties is a legislative function, that the trial court's authority is to impose the sentence authorized by law.
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Sentences or portions thereof which are unauthorized by law are void."
Enforcement
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New Mexico N.M. Stat. Ann. § 31-16-7
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).
No, but statutory law does. N.M. Stat. Ann. § 31-16-7 allows the district attorney to recover payment only from those who were not entitled indigent legal assistance when they received.
A. The district attorney may, on behalf of the state, recover payment or reimbursement, as the case may be, from each person who has received legal assistance or another benefit
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under the Indigent Defense Act:(1) to which he was not entitled; (2) with respect to which he was not a needy person when he received it; or (3) with respect to which he has failed to make the certificate required by Section 62 B of the Indigent Defense Act and for which he refuses to pay. Suit must be brought within six years after the date on which the aid was received. B. The district attorney may, on behalf of the state, recover payment or reimbursement, as the case may be, from each person other than a person covered by Subsection A who has received legal assistance under the Indigent Defense Act and who, on the date on which suit is brought, is financially able to pay or reimburse the state for it according to the standards of ability to pay applicable under the Indigent Defense Act but refuses to do so. Suit must be brought within three years after the date on which the benefit was received. C. Amounts recovered under this section shall be paid to the state treasurer for credit to the state general fund.
Ability to pay
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New Mexico State ex rel. Quintana v. Schnedar, 855 P.2d 562, 568 (N.M. 1993)
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).
Courts should give great deference to the determination of indigency made by the public defender's office when deciding whether a defendant is indigent.
The inherent power of the judiciary to appoint counsel for indigent defendants is within the unique province of the courts to ensure the constitutionality of criminal prosecutions. The PDA and
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the IDA create the statutory apparatus for providing legal representation to indigent criminal defendants. These statutes and other provisions indicate that the Department will determine under its guidelines whether a particular defendant is indigent and therefore entitled to the legal assistance of a public defender. Courts should give great deference to such determinations by the Department, although they retain the ultimate authority to determine indigence and the discretionary ability to order the appointment of a public defender when it is necessary to protect the defendant's constitutional or statutory rights.
Ability to pay
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Utah Neilson v. Dennett, 450 P.2d 93, 95 (Utah 1969)
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).
ability to pay should be determined at the time order is imposed to pay money.
However, in this case it was incumbent upon the trial court to find that the appellant at the time the order was made had the ability to pay over the
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money and thereafter refused to do so before the judge could hold the appellant in contempt for failure to pay
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Utah State v. Vincent, 883 P.2d 278, 283 (Utah 1994) Other applicable case law
A defendant has the initial burden of establishing indigence. The defendant must establish that payment would place an undue hardship on the defendant's ability to provide for the basic necessities
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of life
[T]he defendants bear the initial burden of establishing their indigence. Generally speaking, a person is indigent for purposes of sections 77–32–1 and –2 if payments for counsel or transcripts would
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place an undue hardship on the defendant's ability to provide the basic necessities of life for the defendant and the defendant's family.
Ability to pay
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Utah State v. Haston, 811 P.2d 929, 936 (Utah Ct. App. 1991), rev'd, 846 P.2d 1276 (Utah 1993) Other applicable case law
Imposition of fine and the amount of the fine is left to the discretion of the court. A judge need not give an explanation for the fine he or she
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imposes.
Imposition of a fine, and the accompanying mandatory surcharge, is a matter left to the discretion of the trial court. Utah Code Ann. §§ 63–63a–1 (1989), 76–3–301.5(5) (1990). No particular
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explanation needs to be made by the trial court.
Fines and fees