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State Citation Question Brief answer Language from the opinion When does the case apply?
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Arkansas
Bohannon v. State, 2014 Ark. App. 434; Arkansas Code §5-4-205; Drain v. State, 10 Ark. App. 338, 664 S.W.2d 484 (1984); Cavin v. State, 11 Ark. App. 294, 669 S.W.2d
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508 (1984); Trial Handbook for Arkansas Lawyers § 99:20 (2016-2017 ed.)
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 has to make a good faith attempt to comply with a court order to pay. Otherwise, her probation may be revoked. The State has the burden of proving
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the failure to pay; the burden of production then shifts to the defendant to show why. The State must then prove that the nonpayment was inexcusable.
"(3) In determining whether to revoke probation or conditional release, the court or releasing authority shall consider: (A) The defendant's employment status; (B) The defendant's earning ability; (C) The defendant's financial
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resources; (D) The willfulness of the defendant's failure to pay; and (E) Any other special circumstances that may have a bearing on the defendant's ability to pay."
Ability to pay
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Arkansas
Drain v. State, 10 Ark. App. 338, 664 S.W.2d 484 (1984), citing Bearden v. Georgia, 461 U.S. 660 (1983); see also Ark. Code
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Ann. § 5-4-203(a)(3) and (4) (Supp. 1995).
Imprisonment of an indigent defendant for failure to pay a fine violates the defendant’s equal protection rights.
This statute basically codifies the principles established by the cases of Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), and Williams v. Illinois, 399 U.S.
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235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), both of which stand *341 for the proposition that a sentence to imprisonment for nonpayment of a fine works an invidious discrimination against indigent defendants in violation of the equal protection clause of the Fourteenth Amendment.
Enforcement
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Indiana IN Const. Art. 1, § 16
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).
There is a constitutional limitation on excessive fines in the criminal context.
Section 16. Excessive bail shall not be required. Excessive fines shall not be imposed. Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature
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of the offense.
Ability to pay
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Indiana Ind. Code § 33-37-2-3; Ind. Code § 35-38-2-1.7
Coleman v. State, 61 N.E.3d 390, 392 (Ind. Ct. App. 2016)
Trial court must conduct an indigency hearing when it imposes fines or costs as part of a defendant's sentence; however, no specific requirement indicates when the hearing must be held
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as long as the hearing is held before the sentence is completed.
Further, the trial court must conduct an indigency hearing when it imposes fines or costs as part of a defendant's sentence. Johnson v. State, 27 N.E.3d 793, 794-95 (Ind.Ct.App.2015),
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see also Ind.Code § 33–37–2–3(a). However, no specific requirement indicates when the hearing must be held as long as the hearing is held before the sentence is completed. Johnson, 27 N.E.3d at 794–95.
Ability to pay
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Indiana Meunier-Short v. State, 52 N.E.3d 927, 931 (Ind. Ct. App. 2016)
An indigency determination merely prevents the defendant from being imprisoned for his inability to pay costs or fines. A trial court has the authority to assess fines, costs, and fees
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against an indigent defendant; a different result would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other.
Meunier–Short contends a trial court may not impose costs or fines upon an indigent defendant. But we have previously held, “A defendant's indigency does not shield him from all costs
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or fees related to his conviction.” Banks v. State, 847 N.E.2d 1050, 1051 (Ind.Ct.App.2006), trans. denied. An indigency determination merely prevents the defendant from being imprisoned for his inability to pay. Henderson, 44 N.E.3d at 815. Notwithstanding the indigency hearing requirement contained in Indiana Code sections 33–37–2–3(a) and 35–38–1–18(a), a trial court has the authority to assess fines, costs, and fees against an indigent defendant; “indeed, a different result would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other ...” Williams v. Illinois, 399 U.S. 235, 244, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970).
Ability to pay
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Indiana Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994) Does the state’s separation of powers doctrine limit the ability of courts to impose or collect revenue? The power of the Legislature to impose and regulate fines, exercised within constitutional limits, is not subject to review by the courts
"To summarize, we hold that Article 1, Section 23 of the Indiana Constitution imposes two requirements upon statutes that grant unequal privileges or immunities to differing classes of persons. First,
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the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics which distinguish the unequally treated classes. Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated. Finally, in determining whether a statute complies with or violates Section 23, courts must exercise substantial deference to legislative discretion."
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Indiana IN Const. Art. 5, § 17
State v. Dunning, 9 Ind. 20, 24 (1857)

State v. Rowe, 103 Ind. 118, 2 N.E. 294, 295 (1885)
The provision of the Indiana Constitution that the governor shall have power to remit fines under such regulations as may be prescribed by law has been held only to authorize
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the remission of fines by the governor in pursuance of provisions of law. The power of the governor in this respect is not absolute, but can only be exercised pursuant to legislative direction.
...The Governor may remit fines and forfeitures, under such regulations as may be provided by law… It is plain, we think, that the power of remission is not granted absolutely to
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the governor, but only the power of exercising it pursuant to legislative direction. If the remission ought to be made in this case, the statutory requirement can yet be complied with, and the remission granted. The sense in which the governor may be authorized to “remit fines and forfeitures” is that he may release or absolve the person against whom a fine or forfeiture has been adjudged from its payment after judgment.
Enforcement
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Indiana IN Const. Art. 8, § 2 Under the Indiana Constitution all fines assessed for breaches of the penal laws of the state belong to the common school fund of the state.
...The fund to be derived from the sale of County Seminaries, and the moneys and property heretofore held for such Seminaries; from the fines assessed for breaches of the penal
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laws of the State; and from all forfeitures which may accrue;…
Revenue flow
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Indiana IN Const. Art. 1, § 16 Are there limits to the state’s ability to recoup fees for counsel under the state constitution? There is a constitutional limitation on excessive fines in the criminal context.
Section 16. Excessive bail shall not be required. Excessive fines shall not be imposed. Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature
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of the offense.
Ability to pay
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Indiana Ind. Code § 33-37-2-3
Eliseo v. State, 14 N.E.3d 778, 780 (Ind. Ct. App. 2014)
(e) If, after a hearing under subsection (a) or (b), the court determines that a convicted person is able to pay part of the costs of representation, the court shall
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order the person to pay an amount of not more than the cost of the defense services rendered on behalf of the person. The clerk shall deposit the amount paid by a convicted person under this subsection in the county's supplemental public defender services fund established under Ind. Code § 33-40-3-1. Eliseo argues the trial court abused its discretion when it imposed a public defender fee of more than $100.00. He cites Ind.Code § 35–33–7–6, which sets a $100.00 cap for the public defender fee following a felony conviction. But the trial court “can order reimbursement [of fees] under any [of the statutes] or a combination thereof.” Jackson v. State, 968 N.E.2d 328, 333 (Ind.Ct.App.2012). Two other statutes, Ind.Code § 33–40–3–65 and Ind.Code § 33–37–2–36 give the trial court discretion in determining the public defender fee imposed. As stated above, because the trial court ordered payment after incarceration, it most likely relied on Ind.Code § 33–37–2–3 in determining the amount of the public defender fee, which does not have a cap on the amount. Thus, the trial court did not abuse its discretion by ordering Eliseo pay a public defender fee of $300.00. See, e.g., Kimbrough v. State, 911 N.E.2d 621, 638 (Ind.Ct.App.2009) (holding the requirement to pay a $500.00 public defender fee was not an abuse of discretion).
Ability to pay
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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.
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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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North Dakota State v. Kottenbroch, 319 N.W.2d 465 (N.D. 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).
While the North Dakota Supreme Court has not expressly delineated what the ND constitution requires for an ability to pay hearing, it applied Fuller in holding that the current recoupment
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statute is valid.
Kottenbroch's fourth argument is that the recoupment statute violates due process because it does not provide the defendant with any type of hearing. Before probation may be revoked, however, the
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defendant must be given a hearing pursuant to Rule 32(f), N.D.R.Crim.P. At the hearing, the prosecution must establish by a preponderance of the evidence that a violation of a condition of probation has occurred. In this case the prosecution would have to prove that Kottenbroch was capable of, but unwilling to, repay the costs of his court-appointed counsel. Such a construction will prevent invidious discrimination between a probationer capable of repaying the costs of his attorney and one incapable of such repayment. Fuller v. Oregon, 417 U.S. at 48, fn. 9, 94 S.Ct. at 2122, fn. 9.
Ability to pay
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North Dakota State v. Kottenbroch, 319 N.W.2d 465 (N.D. 1982) Are there limits to the state’s ability to recoup fees for counsel under the state constitution? As noted above, Kottenbroch indicates that a hearing is required.
Kottenbroch's fourth argument is that the recoupment statute violates due process because it does not provide the defendant with any type of hearing. Before probation may be revoked, however, the
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defendant must be given a hearing pursuant to Rule 32(f), N.D.R.Crim.P. At the hearing, the prosecution must establish by a preponderance of the evidence that a violation of a condition of probation has occurred. In this case the prosecution would have to prove that Kottenbroch was capable of, but unwilling to, repay the costs of his court-appointed counsel. Such a construction will prevent invidious discrimination between a probationer capable of repaying the costs of his attorney and one incapable of such repayment. Fuller v. Oregon, 417 U.S. at 48, fn. 9, 94 S.Ct. at 2122, fn. 9.
Fines and fees
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North Dakota State v. Thorstad, 261 N.W.2d 899 (N.D. 1978) Other applicable case law Defendant who agrees to pay restitution in plea bargain has no right to ability to pay determination under N.D. Cent. Code § 12.1-32-08.
After serious deliberation, we conclude that the provisions of s 12.1-32-08, NDCC, apply in situations where the defendant either is found guilty or pleaded guilty to a criminal charge and
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the amounts or the issues of restitution or reparation are uncertain or are in dispute. However, we do not believe it applies where restitution or reparation was resolved by agreement with the defendant through plea-bargaining procedures even though the specific amount is not known and is to be determined later. When a defendant agrees to pay for the damage he caused and has a general idea of the amount, but not the specific amount in dollars and cents, which is to be determined later, he cannot later claim in the absence of fraud, that he was not made aware of the amount or that he did not agree to the amount. After a voluntary agreement has been reached on the issues of restitution and reparation it would be a useless gesture to proceed under s 12.1-32-08, NDCC. We do not believe that justice requires the performance of an idle act (s 31-11-05(23), NDCC), which it would be to require a restitution or reparation hearing after the defendant has agreed to make restitution or reparation, as the case may be.
Ability to pay
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North Dakota State v. Nordahl, 680 N.W.2d 247 (N.D. 2004) Other applicable case law Where defendant agrees to pay restitution in plea bargain, probation can be revoked for failure to pay restitution, even if defendant was genuinely unable to pay
Nordahl's situation is sufficiently distinguishable from the Bearden case. In Bearden, the defendant did not agree to the restitution as part of a plea agreement; rather, restitution was imposed by
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the court as a part of Bearden's sentence. Id. at 662, 103 S.Ct. 2064. . . . The crux of the decision in Bearden rested on good faith. Id. Unlike Bearden, but similar to the defendant in Mitchell, Nordahl knew his financial situation before he entered into the plea agreement with the State's Attorney. Nordahl was in a position to know the nature and extent of his finances and to evaluate his ability to pay the restitution obligation. Prior to entering the plea agreement, Nordahl knew of the encumbrances on his farm and other property. In his affidavit, Nordahl stated it was his intention to sell the bus to satisfy a portion of the restitution and to sell part of his farm property to satisfy the rest of the obligation. Presumably, Nordahl was aware that the outstanding obligations to the bank would go unfulfilled if he paid the restitution obligation in full or, in the alternative, the bank would lose its collateral.
Ability to pay