Recent changes to G.S. 7A-304 (discussed in my previous post) make it more likely that a judge will impose court costs on a defendant who receives an active sentence. Costs now apply by default in active punishment cases, and they may only be waived upon written findings of just cause. Not surprisingly, a frequently asked question of late is how those court costs can be collected from a defendant who is headed directly to jail or prison.
One option is for the court to order the costs docketed as a civil judgment. Under G.S. 15A-1365 a judge may order a judgment docketed when a defendant has defaulted in payment of costs. The statute does not explicitly spell out a procedure for determining whether a defendant has defaulted, but undoubtedly some process is due. See Fuller v. Oregon, 417 U.S. 40 (1974); State v. Crews, 284 N.C. 427 (1974) (vacating a civil judgment ordered in a defendant’s absence without notice or hearing). There is some sense that the hearing procedure set out in G.S. 15A-1364, which allows the court to activate a suspended sentence or impose a contempt-like punishment for those who fail to pay fines or costs, also applies before a civil judgment is docketed. If that is the case, the court should give the defendant an opportunity to show that the default was not attributable to a “failure on his part to make a good faith effort to obtain the necessary funds for payment.” If the defendant does show a good faith inability to pay, the statute directs the court to (1) allow the defendant additional time to pay, (2) reduce the amount owed, or (3) remit the fine altogether. G.S. 15A-1364(c). For a defendant headed directly to jail or prison, that consideration will need to happen at sentencing.
G.S. 15A-1365 nudges the court away from a civil judgment in cases where the defendant winds up serving a period of imprisonment. Aside from drug trafficking and trafficking conspiracy cases, the law provides that the clerk may not issue a writ of execution on a civil judgment for costs if the defendant “elects to serve the suspended sentence, if any, or serve a term of 30 days, if no suspended sentence was imposed.” The official commentary on the law from the Criminal Code Commission says that provision was designed to give the defendant in any case an election to serve a term of imprisonment rather than pay the money owed. Does the statute also prohibit execution when a defendant has served (or is about to serve) an active sentence? Not literally, but bear in mind that the law was written at a time when costs were not typically imposed in active punishment cases. (The statute is also out of date to the extent that it references a defendant’s ability to elect to serve a suspended sentence; that option was repealed in 1995, as discussed here.) In any event, the defendant’s imprisonment does not preclude or extinguish the judgment; it just prevents it from being executed upon. Any judgment ordered would still stand as a lien on the defendant’s real property.
The docketing provisions of G.S. 15A-1365 apply only to court costs and fines. G.S. 15A-1361. A separate docketing provision, G.S. 15A-1340.38, applies to restitution ordered for defendants convicted of crimes covered under the Crime Victims’ Rights Act, G.S. 15A-830(a)(7). As discussed here, there is no authority to docket non-CVRA restitution. See State v. Scott, 723 S.E.2d 173 (N.C. Ct. App. Apr. 3, 2012) (unpublished). Yet another statutory provision, G.S. 7A-455, covers docketing of attorney fees.
Even within the costs category, there is some debate about what qualifies as a “cost” within the meaning of G.S. 15A-1365. At a minimum, a generic reference to “costs” includes all of the costs set out in G.S. 7A-304(a) (the General Court of Justice fee, lab fees, etc.) and those set out in other statutory sections but incorporated by reference through G.S. 7A-304(c) (e.g., witness fees and jail fees). The term costs can probably also be read to include other fees, such as probation supervision, community service, and electronic house arrest fees. See State v. Webb, 358 N.C. 92 (2004) (defining costs as “fees and charges required by law to be paid to the courts or some of their officers, the amount of which is fixed by statute or court rule,” and concluding based on that definition that the attorney appointment fee set out in G.S. 7A-455.1 is a cost within the meaning of Article I, Section 23 of the state constitution). Of course, those additional fees come up only in probationary sentences, and so they are not an issue for civil judgments imposed alongside active sentences. But if a judge is imposing a civil judgment for unpaid costs and fees upon revocation of probation and wishes to include those additional amounts, he or she should probably say so explicitly. They are not obviously included in a generic reference to “costs,” and many clerks will include only the G.S. 7A-304 amounts absent more specific direction from the court.
Finally, I should note that a civil judgment is not the only way costs and fines may be collected in active punishment cases. The court may also recommend that those amounts be collected through work release earnings (see G.S. 148-33.1(f)) or as a condition of post-release supervision (see G.S. 15A-1368.4(e) (3) and (e)(12)), the latter of which will await any felon who receives an active sentence for an offense committed on or after December 1, 2011.