- Requires appointment of counsel for indigent persons who face the possibility of incarceration due to a charge of failure to pay fines, fees, court costs, state assessments or restitution, or for a charge of failure to appear for court proceedings on a failure-to-pay charge.
- Provides a court shall not order the imprisonment or revoke the probation of a person for nonpayment of a fine or restitution, or failure to make timely payments toward such penalties under a payment schedule approved by the court, without first holding a hearing, on the record, inquiring into the reasons for the nonpayment, the individual’s ability to pay and efforts to secure resources, and the adequacy of alternatives to incarceration.
- Provides a court shall not order the imprisonment or revoke the probation of an individual for nonpayment of fees, state assessments, or court costs, or failure to make timely payments toward such penalties under a payment schedule approved by the court.’
- Provides a person shall be presumed to be “unable to pay” a fine, fee, state assessment, court cost or restitution if the person:
- Has an annual income at or below the federal poverty level;
- Resides in a correctional or mental health facility;
- Is homeless;
- Is currently enrolled in one or more types of public assistance;
- Has a development disability or is totally and permanently disabled; or
- By the payment of fines, state assessments, fees, court costs, or restitution, would be deprived or the person’s dependents, including children and elderly parents, would be deprived of financial support needed to meet basic needs such as housing, food, child care, or transportation.
Died in House Judiciary A Committee.
HB 1033 AS APPROVED BE CONFERENCE COMMITTEE
- Provides incarceration shall not automatically follow the nonpayment of a fine, restitution, court order or court costs.
- Provides incarceration may be employed only after the court has conducted a hearing and examined the reasons for nonpayment and finds, on the record, that the defendant was not indigent or could have made payment but refused to do so.
- Provides when determining whether a person is indigent, the court shall use the current Federal Poverty Guidelines and there shall be a presumption of indigence when a defendant’s income is at or below one hundred twenty-five percent (125%) of the Federal Poverty Guidelines, subject to a review of his or her assets.
- Provides a defendant at or below one hundred twenty-five percent (125%) of the Federal Poverty Guidelines without substantial liquid assets available to pay fines, fees, and costs shall be deemed indigent. In determining whether a defendant has substantial liquid assets, the judge shall not consider up to Ten Thousand Dollars ($10,000.00) in tangible personal property, including motor vehicles, household goods, or any other assets exempted from seizure under execution or attachment as provided under Section 85-3-1.
- Provides if the defendant is above one hundred twenty-five percent (125%) of the Federal Poverty Guidelines, the judge shall make an individualized assessment of his or her ability to pay based on the totality of the circumstances including, but not limited to, the defendant’s disposable income, financial obligations and liquid assets. If the judge determines that a defendant who claims indigence is not indigent and the defendant could have made payment but refused to do so, the case file shall include a written explanation of the basis for the determination of the judge. In justice and municipal court, such finding shall be included in the court’s order.
- Provides if it appears to the satisfaction of the court that nonpayment is not willful, the court shall enter an order that allows the defendant additional time for payment, reduces the amount of each installment, revokes the fine, in whole or in part, or allows the defendant to perform community service at the state minimum wage per hour rate.
- Provides if the court finds nonpayment is willful after consideration of the defendant’s situation, means, and conduct with regard to the nonpayment, the court shall determine the period of incarceration, if any, subject to the limitations set by law
- Provides if, at the time the fine, restitution or court cost is ordered, a sentence of incarceration is also imposed, the aggregate total of the period of incarceration imposed pursuant to this section and the term of the sentence originally imposed may not exceed the maximum term of imprisonment authorized for the offense.
Conference Committee report referred to House and Senate 3/27/17.
See HB 672. Died in Senate Judiciary A Committee.