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State Citation Question Brief answer Language from the opinion When does the case apply?
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Maryland Baldwin v. State, 444 A.2d 1058, 1066 (Md. 1982) Are there limits to the state’s ability to recoup fees for counsel under the state constitution? The state may seek reimbursement of any amount which a defendant can reasonably be expected to pay.
"The initial determination, under the law, is to be made by the Public Defender; and to assist him in making it, § 7(b) authorizes him to “make such investigation of
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the financial status of each defendant at such time or times as the circumstances shall warrant....”Obviously cognizant that shifting sands of fortune might subsequently render inaccurate a previous eligibility determination, and also recognizing that time might not always permit a thorough investigation into the financial status of a defendant prior to the rendition of services, the General Assembly provided in art. 27A a comprehensive scheme whereby the Public Defender could obtain reimbursement from defendants later found able to pay for part or all of his services."
Ability to pay
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Maryland Rutherford v. Rutherford, 464 A.2d 228, 237 (Md. 1983) Other applicable case law An indigent defendant in a civil contempt proceeding cannot be sentenced to incarceration unless he or she has been afforded the right to counsel
"Therefore, under the Due Process Clause of the Fourteenth Amendment and Article 24 of the Maryland Declaration of Rights, an indigent defendant in a civil contempt proceeding cannot be sentenced
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to incarceration unless he has been afforded the right to appointed counsel. This does not mean that a constitutional right to appointed counsel attaches in every civil contempt proceeding involving an indigent defendant. Rather, we hold only that, under the due process requirements of the federal and state constitutions, an indigent defendant in a civil contempt proceeding cannot be sentenced to actual incarceration unless counsel has been appointed to represent him or he has waived the right to counsel"
Ability to pay
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Maryland McDaniel v. State, 45 A.3d 916, 924 (Md. 2012) Other applicable case law When a defendant is ordered to make restitution to a crime victim, the defendant must timely object or the issue is waived.
"When a court orders a defendant to make restitution to a crime victim, and the defendant believes that the court either fails to inquire into his ability to pay or
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errs in determining his ability to pay, the defendant must make a timely objection to the order, else the issue is waived"
Ability to pay
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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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Colorado Strickland v. People, 197 Colo. 488, 594 P.2d 578 (1979)
People v. Afentul, 773 P.2d 1081, 1085 (Colo. 1989)
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).
Before revocation of probation for failure to make ordered restitution payments can be effected, trial court must find that defendant had the ability to pay at the time the payments
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should have been made.
"For purposes of requirement that, before probation may be revoked based upon a finding that probationer did not pay moneys due under condition of probation, probationer must have the present
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ability to pay, the ability to pay is measured by three factors: that job for which probationer is qualified is available; that job would produce an income adequate to meet his obligations; and that probationer unjustifiably refuses to take it." "Evidence of the defendant's failure to pay restitution constitutes “prima facie evidence” that the defendant has violated the conditions of the deferred sentencing. When the prosecution presents this “prima facie evidence,” the burden then shifts to the defendant to establish by a preponderance of the evidence that he was financially unable to make the payments at the time they should have been made" (Afentul, citing Strickland)
Enforcement
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Connecticut Molinas v. Comm'r of Correction, 231 Conn. 514, 524–25 (1994)
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).
To establish a valid waiver of the petitioner's claim of indigency, the commissioner would have had to have made an affirmative showing that the petitioner, at the time of
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the plea bargain, was apprised of, and understood, the contours of the constitutional right not to be incarcerated because of indigency and the consequences of a waiver of that constitutional right. Such an affirmative showing would require evidence that the petitioner had been advised that: (1) he had a constitutional right not to be incarcerated solely because of his inability to pay a fine; (2) he would waive that right by agreeing to the committed fine; (3) the effect of a waiver would be that he would not be released on parole until the fine was paid, regardless of the reason for its nonpayment;13 (4) to pay off the committed fine, he would earn credits during his incarceration, subsequent to his parole, in accordance with a disclosed rate schedule; and (5) he would retain the right to pay the outstanding balance of the fine at any time during his incarceration and could thereby remove his ineligibility for early release. In the absence of any such showing, the commissioner's categorical claim of waiver cannot be sustained.
Ability to pay
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Delaware Potter v. State, 547 A.2d 595, 598 (Del. 1988)
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 felony cases that may result in a prison sentence, the Delaware Supreme Court holds that the trial court must make a determination of indigence if indigence is raised as
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an issue. The defendant has the burden of proof and is entitled to a hearing on the issue of indigence. The Court is silent on the substantive factors that must be considered when making a determination of indigence.
If the issue of indigence is raised in a case involving a felony charge which may result in a prison sentence, this Court has held that the trial court has
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a duty to make a determination on the record as to the defendant's alleged indigence before the case proceeds to trial. Stacey v. State, Del.Supr., 358 A.2d 379, 380 (1976) (per curiam). The defendant has the burden of establishing a right to counsel at public expense, but he is entitled to a hearing on the issue of indigence. Id. This Court also held that it is error for a trial court to presume that a defendant is not entitled to counsel from a silent record. Id. Potter v. State, 547 A.2d 595, 598 (Del. 1988)
Ability to pay
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Florida City of Orlando v. Cameron, 264 So. 2d 421, 423 (Fla. 1972).
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).
Under Fla. Stat. §27.52(2), the defendant bears the burden of proof whether he/she is able to pay the fine. The defendant is deemed indigent and not able to pay
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the fine if his/her income is equal to or below 200% of the then-current federal poverty guidelines. The clerk determines the defendant's ability to pay, and the defendant may seek review of the clerk's determination by the court at a hearing. Although Fla. Stat. §27.52 provides procedures in connection with the services of a public defender, the Cameron court extended that this statute is applicable to the situation where a defendant seeks to avoid imprisonment for nonpayment of a fine because of his indigency. In this line, the hearing before the court may be held after imposition of a fine.
"We conclude that the Municipal Court did not commit error in sentencing the defendants to pay a fine or, in the alternative, serve a term of imprisonment. The imposition of
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such a sentence does not, in itself, violate any of the constitutional rights of a defendant. If a defendant is in fact indigent, the burden is upon him to prove his indigency to the Court. Fla.Stat. s 27.52, F.S.A., describes the procedure for the determination of insolvency. Although this procedure was adopted for the purpose of determining whether a defendant is entitled to the services of a public defender, it is equally applicable to the situation where a defendant seeks to avoid imprisonment for nonpayment of a fine because of his indigency."
Ability to pay
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Florida Del Valle v. State, 80 So. 3d 999, 1002 (Fla. 2011); State v. Beasley, 580 So. 2d 139, 142 (Fla. 1991) The court must determine the defendant's ability to pay at least before enforcement (unless the applicable statute specifically requires such a determination at the imposition stage).
"[T]he underlying constitutional principle is that an indigent probationer should not be imprisoned based solely on inability to pay a monetary obligation. Based on our fidelity to this principle, we
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approve the holdings of all the district courts of appeal, except the Third District, that before a trial court may properly revoke probation and incarcerate a probationer for failure to pay, it must inquire into the probationer's ability to pay and determine whether the probationer had the ability to pay but willfully refused to do so. Under Florida law, the trial court must make its finding regarding whether the probationer willfully violated probation by the greater weight of the evidence." "[A] trial court is not required to determine a convicted criminal defendant's ability to pay statutorily mandated costs prior to assessing costs unless the applicable statute specifically requires such a determination. It is only when the state seeks to enforce the collection of costs that a court must determine if the defendant has the ability to pay. Our conclusion is consistent with decisions rendered by federal courts which have addressed this issue."
Ability to pay
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Florida Del Valle v. State, 80 So. 3d 999, 1002 (Fla. 2011)
The State must first present sufficient evidence of willfulness in order to support the trial court's finding that the probationer's violation was willful. Once the State has done so, then
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the probationer has to prove his/her inability to pay by preponderance of evidence.
"[A]n automatic revocation of probation without evidence presented as to ability to pay to support the trial court's finding of willfulness violates due process. Accordingly, the State must present sufficient
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evidence of willfulness, including that the probationer has, or has had, the ability to pay, in order to support the trial court's finding that the violation was willful. Once the State has done so, it is constitutional to then shift the burden to the probationer to prove inability to pay to essentially rebut the State's evidence of willfulness. However, while it is constitutional to place the burden on the probationer to prove inability to pay, the aspect of section 948.06(5) that requires the probationer to prove inability to pay by the heightened standard of clear and convincing evidence is unconstitutional."
Ability to pay
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Florida Wheeler v. State, 635 So. 2d 140, 140 (Fla. 4th Dist. Court App. 1994) State must demonstrate the amount spent on prosecuting the defendant.
"Before prosecution costs can be imposed on a defendant pursuant to section 939.01, Florida Statutes (1991), the State must demonstrate the amount spent on prosecuting the defendant and the trial
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court must consider the defendant's financial resources."
Fines and fees
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Florida Fla. Const. Art. V, Sec. 14(a) and (b) Does the state’s separation of powers doctrine limit the ability of courts to impose or collect revenue? Yes: funding for the court systems must be provided from state revenues appropriated by general law
"(a) All justices and judges shall be compensated only by state salaries fixed by general law. Funding for the state courts system, state attorneys’ offices, public defenders’ offices, and court-appointed
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counsel, except as otherwise provided in subsection (c), shall be provided from state revenues appropriated by general law.(b) All funding for the offices of the clerks of the circuit and county courts performing court-related functions, except as otherwise provided in this subsection and subsection (c), shall be provided by adequate and appropriate filing fees for judicial proceedings and service charges and costs for performing court-related functions as required by general law. Selected salaries, costs, and expenses of the state courts system may be funded from appropriate filing fees for judicial proceedings and service charges and costs for performing court-related functions, as provided by general law. Where the requirements of either the United States Constitution or the Constitution of the State of Florida preclude the imposition of filing fees for judicial proceedings and service charges and costs for performing court-related functions sufficient to fund the court-related functions of the offices of the clerks of the circuit and county courts, the state shall provide, as determined by the legislature, adequate and appropriate supplemental funding from state revenues appropriated by general law."
Revenue flow
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Florida NA
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?
Couldn't fine a case on point NA
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Florida Fla. Stat. §938.29 Are there limits to the state’s ability to recoup fees for counsel under the state constitution? Not under the statute constitution, but under Fla. Stat. §938.29
(1)(a) A defendant who is convicted of a criminal act or a violation of probation or community control and who has received the assistance of the public defender’s office, a
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special assistant public defender, the office of criminal conflict and civil regional counsel, or a private conflict attorney, or who has received due process services after being found indigent for costs under s. 27.52, shall be liable for payment of the assessed application fee under s. 27.52 and attorney’s fees and costs. Attorney’s fees and costs shall be set in all cases at no less than $50 per case when a misdemeanor or criminal traffic offense is charged and no less than $100 per case when a felony offense is charged, including a proceeding in which the underlying offense is a violation of probation or community control. The court may set a higher amount upon a showing of sufficient proof of higher fees or costs incurred. For purposes of this section, “convicted” means a determination of guilt, or of violation of probation or community control, which is a result of a plea, trial, or violation proceeding, regardless of whether adjudication is withheld. The court shall include these fees and costs in every judgment rendered against the convicted person.(b) Upon entering a judgment of conviction, the defendant shall be liable to pay the attorney’s fees and costs in full after the judgment of conviction becomes final. The court shall impose the attorney’s fees and costs notwithstanding the defendant’s present ability to pay. (c) The defendant shall pay the application fee under s. 27.52(1)(b) and attorney’s fees and costs in full or in installments, at the time or times specified. The court may order payment of the assessed application fee and attorney’s fees and costs as a condition of probation, of suspension of sentence, or of withholding the imposition of sentence. All funds collected under this section shall be distributed as provided in s. 27.562. (2)(a) There is created in the name of the state a lien, enforceable as hereinafter provided, upon all the property, both real and personal, of any person who: 1. Has received any assistance from any public defender of the state, from any special assistant public defender, from any office of criminal conflict and civil regional counsel, or from any private conflict attorney, or who has received due process services after being found indigent for costs; or 2. Is a parent of an accused minor or an accused adult tax-dependent person who is being, or has been, represented by any public defender of the state, by any special assistant public defender, by any office of criminal conflict and civil regional counsel, or by a private conflict attorney, or who is receiving or has received due process services after being found indigent for costs. Such lien constitutes a claim against the defendant-recipient or parent and his or her estate, enforceable according to law. (b) A judgment showing the name and residence of the defendant-recipient or parent shall be recorded in the public record, without cost, by the clerk of the circuit court in the county where the defendant-recipient or parent resides and in each county in which such defendant-recipient or parent then owns or later acquires any property. Such judgments shall be enforced on behalf of the state by the clerk of the circuit court of the county in which assistance was rendered. The lien against a parent shall remain in force notwithstanding the child becoming emancipated or the child reaching the age of majority. (3) The clerk of the circuit court within the county wherein the defendant-recipient was tried or received the services of a public defender, special assistant public defender, office of criminal conflict and civil regional counsel, or appointed private legal counsel, or received due process services after being found indigent for costs, shall enforce, satisfy, compromise, settle, subordinate, release, or otherwise dispose of any debt or lien imposed under this section. A defendant-recipient or parent, liable to pay attorney’s fees or costs and who is not in willful default in the payment thereof, may, at any time, petition the court which entered the order for deferral of the payment of attorney’s fees or costs or of any unpaid portion thereof. (4) No lien thus created shall be foreclosed upon the homestead of such defendant-recipient or parent, nor shall any defendant-recipient or parent liable for payment of attorney’s fees or costs be denied any of the protections afforded any other civil judgment debtor. (5) The court having jurisdiction of the defendant-recipient shall, at such stage of the proceedings as the court may deem appropriate, determine the value of the services of the public defender, special assistant public defender, office of criminal conflict and civil regional counsel, or appointed private legal counsel and costs, at which time the defendant-recipient or parent, after adequate notice thereof, shall have opportunity to be heard and offer objection to the determination, and to be represented by counsel, with due opportunity to exercise and be accorded the procedures and rights provided in the laws and court rules pertaining to civil cases at law.
Revenue flow
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Florida State v. Beasley, 580 So. 2d 139, 142-43 (Fla. 1991) Other applicable case law
Due process requirements: (1) notice and opportunity to be heard prior to assessment of costs; and (2) ability to pay decision must be made by the court before enforcement.
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Such procedural requirements apply to fines, costs, and surcharges.
[A] defendant must be given notice and an opportunity to be heard prior to assessment of costs and, before repayment is enforced, a court must determine the defendant's ability to
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pay. Because the surcharge, like the costs, is statutorily mandated, whether it is a cost or a fine is unimportant from a due process viewpoint. The same two-part procedural protections from Jenkins apply.
Ability to pay
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Florida Fla. Const. Art. I, Sec. 11 Other applicable case law No person shall be imprisoned for debt, except in cases of fraud. No person shall be imprisoned for debt, except in cases of fraud. Ability to pay
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Georgia Lawson v. City of Moultrie, 194 Ga. 699 (1942) Does the state’s separation of powers doctrine limit the ability of courts to impose or collect revenue?
No, Statute authorizing counties and municipal corporations to construct revenue producing undertakings, and in anticipation of the collection of revenue therefrom to issue certificates payable solely from such revenue, does
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not violate constitutional provision limiting the powers of counties and municipalities in relation to contracting debts
neither the act nor the ordinance violates the constitutional provision above referred to. Revenue flow
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Georgia Messenger v. State, 72 S.E.2d 460 (1952) Other applicable caselaw The inhibition of the constitution against imprisonment for debt applies to any and all such imprisonment, irrespective of the period of its duration or the means whereby it is accomplished the Constitution of Georgia forbids imprisonment for debt Ability to pay
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Georgia State v. Higgins, 326 S.E.2d 728, (Ga. 1985) Other applicable caselaw invalidating an income tax law that authorized punishment solely for the nonpayment of income taxes
[A] criminal provision drawn in terms of a ‘wilful failure’ to pay tax would be an entirely different matter, as it would catch the intentional tax evader without at the
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same time ensnaring the hapless pauper.
Ability to pay