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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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South Dakota State v. Webb, 856 N.W.2d 171, 174 (S.D. 2014)
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).
This is the first instance in which we have addressed the Excessive Fines Clause as it applies to a criminal fine. . . “First, the claimant must make a prima
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facie showing of gross disproportionality; and, second, if the claimant can make such a showing, the court considers whether the disproportionality reaches such a level of excessiveness that in justice the punishment is more criminal than the crime. ...One of the primary considerations for assessing gross disproportionality should necessarily be the Legislature's judgment about the appropriate punishment for the offense. ...
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South Dakota State v. Huth, 334 NW 2d 485 (1983); White Eagle v. State, 280 NW 2d 659 (1979). Are there limits to the state’s ability to recoup fees for counsel under the state constitution?
To a very limited extent. The South Dakota Supreme Court has upheld (at least twice) the state's law requiring repayment of indigent counsel fees. The Court held in both instances
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that, because of language statung that a failure to pay by the defendant because of inability to pay would not be considered a violation of probation, that revocation for non-payment would not be tantamount to imprisonment for debt but rather a sanction imposed for an intentional refusal to obey a court order.
Appellant's first contention is that imposing the repayment of attorney fees as a condition of probation is a violation of his right to equal protection of the law because, as
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a result of such a condition, an indigent defendant is treated differently than a non-indigent defendant. Appellant argues that an indigent defendant can be imprisoned, by revocation of probation, for nonpayment of a debt whereas a nonindigent defendant who does not pay his attorney fees cannot be imprisoned for his failure to pay a debt. We do not agree with appellant's analysis. Appellant's right to equal protection of the law requires that the law be applied equally. That was done in this case. He was given the same choice that any other defendant in this situation, indigent or not, would have been given: probation with conditions or imprisonment. He was made fully aware of all the conditions being imposed and he accepted them. The conditions imposed need not be the same for every defendant and the fact that they are not is not a denial of equal protection. Conditions of probation may be tailored to suit the needs, practicalities and realities of each case to better serve the defendant and the public. The decision whether or not to accept the conditions was given to appellant just as it is to any defendant in a similar situation. Appellant's equal protection rights were not violated. See State v. Gerard, 57 Wis.2d 611, 205 N.W.2d 374 (1973). Closely related to his equal protection argument is appellant's contention that imposition of repayment of attorney fees as a condition of probation is unconstitutional in that any revocation of probation for failure to pay said fees would be imprisonment for debt, which is prohibited by Article VI, § 15, of the South Dakota Constitution. Again, we disagree with appellant. In Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974), the United States Supreme Court ruled that repayment of attorney fees as a condition of probation, as provided by Oregon statutes, was not a violation of Mr. Fuller's constitutional rights. Oregon's statutes required that a probatee not be required to pay said fees unless he is or will be able to do so, that the probatee may petition to have the unpaid portion "forgiven"; and that no probatee may have his probation revoked due to nonpayment if he shows that his failure to repay was not attributable to an intentional refusal to obey the order or a lack of a good faith effort to make the payments. The Court approved the statutory scheme as being within constitutional guidelines pointing out that any probatee who truly is unable to make such payments due to hardship or other disability will not lose his freedom because of his failure to do so. Although the issue of imprisonment for debt was not brought before the Court in Fuller and was only discussed in a footnote, we agree with the majority's observation that, since no probatee who is truly unable to make repayment will have his probation revoked for such failure, the condition, if enforced, is not imprisonment for debt, but is rather "a sanction imposed for `an intentional refusal to obey the order of the court[.]'"
Ability to pay
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Wyoming Murray v. State, 855 P.2d 350), (WY 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).
With respect to imposing a surcharge on a defendant under Section 1-40-119, the court is required to find an ability to pay before ordering an assessment.
We agree with Appellant that the court was required to find that he had [**28]  an ability to pay before ordering the assessment. Murray v. State, 1993 Wyo. LEXIS 110, *27-28,
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855 P.2d 350, 359 (Wyo. 1993)
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Wyoming Murray v. State, 855 P.2d 350), (Wyo. 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).
With respect to imposing restitution under Section 7-9-103(a) and 7-9-102, the court must only make a specific finding when the defendant does not have any ability to pay.
Henceforth, the court must make a specific finding only when the defendant does not have a present or prospective ability to pay. Although the court is not required to specifically
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find that a defendant has the ability to pay, the record must still contain evidence to  support the existence of a present or future ability to pay. Murray v. State, 1993 Wyo. LEXIS 110, *26-27, 855 P.2d 350, 359 (Wyo. 1993)
Ability to pay
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Wyoming Billis v. State, 800 P.2d 401, 433, (Wyo. 1990) Are there limits to the state’s ability to recoup fees for counsel under the state constitution? The court has the authority to require the defendant's payment of his legal fees.
Under W.S. 7-6-106(d) (June 1987 Repl.) the courts have the authority to order a defendant to repay the state for the cost of defense services. Billis v. State, 800 P.2d 401,
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433, 1990 Wyo. LEXIS 119, *100 (Wyo. 1990)
Fines and fees