Request By:
Mr. James S. Secrest
Allen County Attorney
Box 35
Scottsville, Kentucky 42164
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise questions about commitment of a defendant to jail for failure to pay a fine and costs adjudged by the district court. You specifically mention Spurlock v. Noe, Ky., 467 S.W.2d 320 (1971). Your understanding of Spurlock is that the court must give a person, who cannot for economic reasons [he is an indigent] pay the fine, an immediate opportunity to satisfy the fine by some reasonable means other than an immediate lump sum payment before he is declared to be in default and placed in jail. You ask if your view is correct.
The significance of Spurlock is that the court followed Tate v. Short, 401 U.S. 395, 91 S. Ct. 668, 28 L. Ed. 2d 130 (March 2, 1971), in holding that a defendant who is in custody solely and only becuase he cannot make immediate payment of a fine by reason of indigency must be released from custody. Another way of stating the principle is that the states are prohibited from imposing a fine and thus automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine. See also Williams v. Illinois, 399 U.S. 235, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970), wherein the court pointed out that the states are not powerless to enforce judgments against those financially unable to pay the fine. The court in Spurlock wrote that "We find nothing in Tate v. Short which precludes the circuit court from conditioning the order of release upon some reasonable alternative method for the satisfaction of the fine. " Spurlock, above, p. 322. (Emphasis added). OAG 73-111 was written within the framework of Spurlock and the two U.S. Supreme Court cases cited above.
In 1974 the General Assembly of Kentucky enacted KRS 534.060 [response to nonpayment of fines] as a specific means of providing a reasonable method for satisfaction of fines.
Under KRS 534.020, when a defendant is sentenced to pay a fine, the court may: (1) provide that the fine shall be payable forthwith; or (2) provide for the fine to be paid within a specified period of time; or (3) provide for payment of the fine in specified instalments. Under subsection (2) of KRS 534.020 when a defendant is sentenced to pay a fine, an alternative sentence of imprisonment that is to be served in the event the fine is not paid shall not be imposed at the same time. The response of a court to nonpayment of a fine shall be determined only after the fine has not been paid, and only as provided in KRS 534.060. The point we make in OAG 78-165 is that the three alternatives listed above under KRS 534.020 [immediate payment, specified time payment, and instalment payment] are options, the court choosing one of the three alternatives. Actually OAG 78-165 does not finally deal with the indigency question. If the defendant claims indigency, after a nonpadment of the fine, he must follow the procedure outlined in KRS 534.060 and come on into court and plead and prove his indigency. He must simply respond to a show cause motion [as to why he should not be imprisoned for nonpayment of the fine] of the prosecuting attorney or order of the court. There is nothing in OAG 78-165 which conflicts with the rule about imprisonment of indigents. If the defendant proves to the court that his nonpayment of the fine was not attributable to an intentional refusal to obey the sentence of the court and was not attributable to a failure on his part to make a good faith effort to obtain the necessary funds for payment, the court cannot, under KRS 534.060 and under Spurlock and Tate, above, order the defendant imprisoned for such failure to pay the fine.
So you can clearly see that KRS 534.060 explicitly makes provision for the indigency situation, and where it is proven to the court's satisfaction. If he can show indigency, then the court cannot, under KRS 534.060, imprison the defendant. Indeed, if the court finds that the defendant's nonpayment is excusable under the indigency concept, the court may, under subsection (3) of KRS 534.060, enter an order allowing the defendant additional time for payment, reducing the amount of each instalment, or modifying the manner of payment in any other way. The court may, in addition, compel the defendant to work for a department of local government under certain conditions outlined therein [available job, reasonable pay etc.]. Finally, following a default in payment of the fine or any instalment thereon, the fine may be collected by any means authorized for the enforcement of money judgments rendered in favor of the Commonwealth.
We believe that you can now see that KRS 534.060 was tailored to accomodate theindigency principle, as established by our state court and the United States Supreme Court.
You ask for how long can a defendant be committed to jail for nonpayment of a fine for a misdemeanor carrying no jail for nonpayment of a fine for a misdemeanor carying no jail sentence.
Assuming he is not a court found indigent, under KRS 534.060(2)(b), the defendant can be imprisoned for a term not to exceed one third (1/3) of the maximum authorized term of imprisonment for the offense committed. Here it does not is one third of the "maximum authorized term." (Emphasis added). We are unaware of any misdemeanor offense in the penal code not carrying with it a court option to impose a jail sentence. See KRS 532.090, 500.080(10), and 532.005. You specifically mention KRS 304.99-060(1) and (2), involving a failure to have a proper vehicle sticker showing insurance coverage. The penalty is a fine of from $50 to $500 and a 30 or 90 days' suspension of the license plates. Actually the offenses described in KRS 304.99-060(1) and (2) are violations, and not misdemeanors, since no term of imprisonment is provided. KRS 532.020(4). Therefore in answer to your specific question, the court may order the defendant in such case imprisoned for a term not to exceed ten (10) days. KRS 534.060(2)(c).
KRS 453.020(2) provides that if defendant is convicted of a misdemanor, all costs unpaid may be "collected" in the same manner as a fine. (Emphasis added). You ask whether this means that KRS 534.060 would apply to nonpayment of costs? The answer is "yes". That statute relates to nonpayment of fines, but KRS 453.020(2) says costs may be collected as fines are. Actually, costs are not a part of the penalty. Costs constitute a civil debt, primarily costs are statutory allowances covering expenses incurred in the action. Expenses include paying officers for services rendered therein. 20 Am.Jur.2d, Costs, § 1. To be collectible costs must be taxed and made part of the judgment. Bell County v. Minton, 239 Kv. 840, part of the judgment. Bell County v. Minton, 239 Ky. 840, 40 S.W.2d 379 (1931) 381. It is our opinion that KRS 453.020(2) refers to any statutory method of collecting fines and to civil remedies in collection of the costs. Civil remedies may be applied to nonpayment of costs. See KRS Chapter 426. Note that KRS 453.020(2) refers to "collection of costs." Cf. KRS 534.060(5). See Bell County v. Minton, above.
You ask for what length of time can a defendant be commited to jail for nonpayment of costs of $27.50.
We have just pointed out that KRS 534.060 applies to nonpayment of fines and costs [under KRS 453.020]. See subsection (2) of KRS 534.060 for the application of the imprisonment feature and subsection (3) for application of the "excusable" feature. The use of the capias pro fine (literally, you take for the fine) however, is restricted to the nonpayment of fines. However, the efficacy of this is now in doubt since there is no statute providing for a specific daily rate of credit; and it can be argued that the legislature intended that the procedure in KRS 534.060 has preempted the field as to the response to nonpayment of fines. In its proper application it carried with it not only a summary order to collect the money judgment, but to take the defendant into custody and confine him until it is satisfied in the manner provided by law. Board of Councilmen of City of Frankfort v. Rice, 249 Ky. 771, 61 S.W.2d 614 (1933) 615. See also KRS 135.030; Section 77, Kentucky Constitution; and Commonwealth v. French, 130 Ky. 744, 114 S.W. 255 (1908) 256. Thus we are not aware of any basis for imprisonment of a defendant for failure to pay the costs. 1 KRS 431.140, prior to the 1974 amendment [penal code] [Ch. 406, § 316], provided for satisfying the fine and costs by imprisonment in the county jail. The 1974 amendment deleted such provisions. KRS 441.170 relates to an officer arresting a person upon a capias, which fine and costs may be worked out at hard labor if not satisfied, etc. However, KRS 441.180, which provided for credit allowed in satisfying fines and costs in jail at hard labor, was repealed in 1974 [Ch. 406, § 336]. See KRS 441.120, which erroneously refers to KRS 431.140 as providing for working out fines and costs in jail. As we said, the credit system of KRS 441.180 was repealed by the new penal code in 1974, of KRS 441.180 was repealed bythe new penal code in 1974, and KRS 431.140, which prior to 1974, provided for satisfying the fine and costs in jail, was amended in 1974 to delete such jail provisions. Thus there is no provision now in the statutes setting a rate of $2.00 or any amount per day for nonpayment of costs.
Footnotes
Footnotes
1 As relates to the capias procedure.