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State Citation Question Brief answer Language from the opinion When does the case apply?
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California People v. Castellanos, 175 Cal. App. 4th 1524, 1532 (2009)
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 material part of the ability to pay is an evaluation of the totality of the accused's financial responsibility. Note, most of the statutes imposing fines have ability to pay
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provisions, so most of the court cases addressing ability to pay look at the text of the cited statute and do not ask more broadly what "ability to pay" means in the abstract.
Although the Legislature has chosen to direct trial courts to take into account other fines and restitution, the controlling question is the ability to pay which includes, in material part,
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an evaluation of the totality of an accused's financial responsibilities. People v. Castellanos, 175 Cal. App. 4th 1524, 1532, 98 Cal. Rptr. 3d 1, 7 (2009)."Government Code section 29550.2 places on the People the burden of proving a defendant's ability to pay a booking fee. Because the fee is not “punishment” for constitutional purposes (see People v. Alford, supra, 42 Cal.4th at pp. 756–759, 68 Cal.Rptr.3d 310, 171 P.3d 32), the People's burden of proof is by preponderance of evidence . . ." People v. McCullough, 56 Cal. 4th 589, 598, 298 P.3d 860, 866 (2013). "The California Legislature has made inability to pay—which encompasses both present financial inability and inability to obtain remunerative employment in order to pay—an affirmative defense." Moss v. Superior Court (Ortiz), 17 Cal. 4th 396, 426, 950 P.2d 59, 78 (1998). "In any event, equal protection does not require a trial judge make an express finding of ability to pay before ordering restitution." People v. Goulart, 224 Cal. App. 3d 71, 84 (Ct. App. 1990), modified (Oct. 1, 1990).
Ability to pay
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California People v. Walz, 160 Cal. App. 4th 1364, 1369, 73 Cal. Rptr. 3d 494, 497–98 (2008); People v. Martinez, 65 Cal. App. 4th 1511, 1521 (1998) Does the state’s separation of powers doctrine limit the ability of courts to impose or collect revenue?
When the Legislature intends to grant courts discretion to set a fine amount within a range, it will use language to show this. Otherwise, the trial court is obliged to
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impose penalties set out by the legislature and not use its discretion if not directed to.
Unless the Legislature has otherwise provided, such as in section 1202.4, subdivision (e), or Welfare and Institutions Code section 730.6, subdivision (f), penalty assessments under sections 1464, and Government Code
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section 76000 are mandatory. (People v. Sierra (1995) 37 Cal.App.4th 1690, 1694–1695, 44 Cal.Rptr.2d 575; People v. Heisler (1987) 192 Cal.App.3d 504, 506–507, 237 Cal.Rptr. 452; Penalty Assessments and Court Costs, 62 Ops.Cal.Atty.Gen. 13, 17 (1979).) As explained in People v. Sierra, supra, 37 Cal.App.4th at page 1695, 44 Cal.Rptr.2d 575: “Trial courts are given discretion under subdivision (d) of section 1464 not to impose the penalty assessment where an inmate remains in prison [until the fine is satisfied] and the payment of the assessment ‘would work a hardship on the person convicted or his or her immediate family.’ Otherwise, the trial court has an obligation to impose a penalty assessment. People v. Martinez, 65 Cal. App. 4th 1511, 1521 (1998).We conclude that the $200 fine imposed by the trial court was unauthorized. “[A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case.” (People v. Scott, supra, 9 Cal.4th at p. 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040.) Section 290.3, subdivision (a) states that a defendant convicted of a qualifying sex offense “shall ... be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction ..., unless the court determines that the defendant does not have the ability to pay the fine.” (Italics added.) The statute does not authorize a fine of $200, and the language of section 290.3, subdivision (a) is **498 not amenable to an interpretation granting a trial court discretion to impose a fine of less than the prescribed amount if it determines that the defendant does not have the ability to pay the full amount of the fine. When the Legislature has granted trial courts discretion to set the amount of a fine within a range, it has used language that so indicates. People v. Walz, 160 Cal. App. 4th 1364, 1369, 73 Cal. Rptr. 3d 494, 497–98 (2008).
Revenue flow
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California People v. Honig, 48 Cal. App. 4th 289, 314 (1996).
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 direct case law on this topic, but cases discuss the purpose of conflict of interest statutes that are designed to remove or limit possibility of personal influence.
The duties of public office demand the absolute loyalty and undivided, uncompromised allegiance of the individual that holds the office. (Thomson v. Call, supra, 38 Cal.3d at p. 648, 214
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Cal.Rptr. 139, 699 P.2d 316; Stigall v. City of Taft (1962) 58 Cal.2d 565, 569, 25 Cal.Rptr. 441, 375 P.2d 289.) Yet it is recognized “ ‘that an impairment of impartial judgment can occur in even the most well-meaning men when their personal economic interests are affected by the business they transact on behalf of the Government.’ ” (Stigall v. City of Taft, supra, 58 Cal.2d at p. 570, 25 Cal.Rptr. 441, 375 P.2d 289, quoting United States v. Mississippi Valley Generating Co. (1961) 364 U.S. 520, 549, 81 S.Ct. 294, 309, 5 L.Ed.2d 268, 288.) Consequently, our conflict-of-interest statutes are concerned with what might have happened rather than merely what actually happened. (Ibid.) They are aimed at eliminating temptation, avoiding the appearance of impropriety, and assuring the government of the officer's undivided and uncompromised allegiance. (Thomson v. Call, supra, 38 Cal.3d at p. 648, 214 Cal.Rptr. 139, 699 P.2d 316.) Their objective “is to remove or limit the possibility of any personal influence, either directly or indirectly which might bear on an official's decision....” (Stigall v. City of Taft, supra, 58 Cal.2d at p. 569, 25 Cal.Rptr. 441, 375 P.2d 289, emphasis in original; see also People v. Vallerga (1977) 67 Cal.App.3d 847, 865, 136 Cal.Rptr. 429; People v. Watson (1971) 15 Cal.App.3d 28, 39, 92 Cal.Rptr. 860.). People v. Honig, 48 Cal. App. 4th 289, 314 (1996).
Revenue flow
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California People v. Amor, 12 Cal. 3d 20, 25–26, 523 P.2d 1173, 1175–76 (1974) Are there limits to the state’s ability to recoup fees for counsel under the state constitution?
The Court is able to forewarn a defendant that she might be held liable for payment of her appointed counsel and order her to pay what she has the financial
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ability to pay. However, it cannot condition probation on a requirement that the defendant reimburse the court for costs of appointed counsel or hold her liable without a finding of financial ability or warning.
Questions: First. Does section 987.8 of the Penal Code place an unconstitutional burden on the right to counsel in criminal proceedings? No. Defendant contends that section 987.8 is unconstitutional, on
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the ground that it has a chilling effect upon an accused's right to counsel. She argues that a deprivation of the trial to counsel may result, because the possibility under the statute that a defendant will be ordered to pay all or part of his counsel fees may cause him to decline counsel rather than run the risk of being required to pay counsel fees in an unknown amount. Under this theory, however, any defendant, indigent or not indigent, who elected to enter a guilty plea in order to save counsel fees would have been deprived of his right to counsel. If such a theory were sound, it would result in the practical elimination of the fee system with respect to the defense of criminal prosecutions. In urging her contention, defendant relies principally upon In re Allen, 71 Cal.2d 388, 78 Cal.Rptr. 207, 455 P.2d 143. In Allen, this court held that probation may not be conditioned on a requirement that the defendant reimburse the county for the services of court—appointed counsel. Allen, however, is distinguishable from the present case. In Allen, there is justification for concluding that the petitioner would have been penalized for exercising a constitutional right, because not only would she have been liable for payment of the entire fee paid to counsel for representing her, without a finding that she had the financial ability to make payment and with no warning that she might be held so liable, but she could have been imprisoned if she failed to pay the fee, payment thereof being one of the conditions of her probation. Here, on the other hand, the defendant, who had been forewarned that she might be held liable for payment of the fee for her appointed counsel, or part of it, was ordered to pay only that part which the court determined she had the financial ability to pay; and under the statute, since execution was issuable only as on a judgment in a civil action, she could not have been imprisoned for nonpayment. (Cal.Const., art. I, s 15.). People v. Amor, 12 Cal. 3d 20, 25–26, 523 P.2d 1173, 1175–76 (1974)
Revenue flow
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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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Maine State v. Davenport, 138 A.3d 1205, 1208 (Me. 2016)
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).
Defendant's ability to pay must be considered for restitution costs, but defendant has burden of proof on showing inability to pay
In addition to establishing the offender's burden at sentencing, the Legislature supplied the burden that applies on appeal: “On appeal of a restitution order, the offender has the burden of
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demonstrating that the incapacity was proven as a matter of law.” 17–A M.R.S. § 1325(4) (enacted by P.L. 1997, ch. 413, § 3).
Ability to pay
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Maine State v. Lane, 649 A.2d 1112, 1115 (Me. 1994) Does the state’s separation of powers doctrine limit the ability of courts to impose or collect revenue? Yes. However, Legislative branch may give the judicial branch authority to impose additional fines, fees, and surcharges, which is the case with some Maine statutes.
All revenue received We have previously upheld mandatory minimum sentences and fines set by the Legislature to be imposed by the judiciary. See State v. Thibeault, 621 A.2d 418, 419
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(Me.1993) (mandatory minimum sentencing scheme set forth in 17-A M.R.S.A. § 1251 does not impermissibly limit judicial discretion in sentencing); State v. Briggs, 388 A.2d 507, 509 (Me.1978) (mandatory fine provided for night hunting did not violate separation of powers provision in Constitution); State v. Farmer, 324 A.2d 739, 746 (Me.1974) (minimum mandatory sentence does not violate separation of powers mandate). State v. Lane, 649 A.2d 1112, 1115 (Me. 1994) In the instant case, the Legislature directed that the judiciary add a mandatory 10% surcharge to any fine imposed. We find the judicial imposition of the surcharge was made pursuant to valid legislative authority and, therefore, is not an unconstitutional violation of the separation of powers. Id.
Fines and fees
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Maine State v. Drewry, 946 A.2d 981, 991 (Me. 2008) Are there limits to the state’s ability to recoup fees for counsel under the state constitution? None besides indigency; court may take from offenders' funds earned while in prison
The court ordered Drewry to reimburse it in the amount of $2500 toward fees paid to Drewry's court-appointed counsel after finding that Drewry had $4265.42 in his jail account, which
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funds were obtained as a result of a settlement of Drewry's claim in the United States District Court against the Cumberland County Jail and Jail personnel for injuries he sustained from having been assaulted by another inmate while awaiting his trial. The trial court has the authority to reconsider a defendant's indigency status at any time during the course of criminal proceedings “whenever convincing evidence of non-indigence comes to [the court's] attention.” State v. Perry, 486 A.2d 154, 158–59 (Me.1985); see also M.R.Crim. P. 44. Drewry's alleged injuries, although sustained while in jail on the present indictment, were not the result of any misconduct on the part the State, the police, the court, or any witnesses. We decline to extend Drewry's invitation to expand our holding in Perry to these circumstances, and determine that the court committed no error in ordering Drewry to reimburse the State for a portion of his court-appointed legal fees.
Fines and fees
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Michigan People v. Jackson, 483 Mich. 271, 769 N.W.2d 630 (2009)
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).
Defendant is not entitled to an assessment of ability to pay fee for court-appointed attorney until the imposition of the fee is enforced
Indeed, whenever a trial court attempts to enforce its imposition of a fee for a court-appointed attorney under MCL 769.1k, the defendant must be advised of this enforcement action and
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be given an opportunity to contest the enforcement on the basis of his indigency. Thus, trial courts should not entertain defendants' ability-to-pay-based challenges to the imposition of fees until enforcement of that imposition has begun. . . . The operative question for any such evaluation will be whether a defendant **643 is indigent and unable to pay at that time or whether forced payment would work a manifest hardship on the defendant at that time.
Ability to pay
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Michigan People v. Cunningham, 496 Mich. 145, 147, 852 N.W.2d 118, 120 (2014) Imposing costs beyond those specified in statute
The authority to impose criminal costs is statutory. Statute stating that if defendant is guilty, court may impose any cost in addition to the minimum state cost, does not provide
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courts with the independent authority to impose any costs upon defendants, and instead, statute provides courts with authority to impose only those costs that the Legislature has separately authorized by statute.
“The right of the court to impose costs in a criminal case is statutory.” . . . . Thus, courts may impose costs in criminal cases only where such costs
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are authorized by statute. In a variety of circumstances, the Legislature has chosen to provide courts with the authority to impose costs. For instance, with regard to certain offenses, courts may require criminal defendants to pay the “costs of prosecution.” . . . we conclude that MCL 769.1k (1)(b)(ii ) does not provide courts with the independent authority to impose “any cost.” Instead, we hold that MCL 769.1k(1)(b)(ii ) provides courts with the authority to impose only those costs that the Legislature has separately authorized by statute.