Following up on Jeff’s post yesterday about court costs and traffic citations, today’s post is about a trial judge’s authority to waive court costs.
Under G.S. 7A-304, certain court costs “shall be assessed” in every criminal case where a defendant is convicted or enters a plea of guilty or nolo contendere. Under the pre-2011 version of that law, a trial court’s general authority to waive court costs was unclear, but the law explicitly provided that costs would only be assessed in active punishment cases when the judgment said so.
In the 2011 budget act, the General Assembly addressed the waiver issue, saying in amended G.S. 7A-304(a) that the trial court could not waive costs unless it made a written finding of just cause to grant such a waiver. S.L. 2011-145, sec 15.10.(a). That change was incorporated into the boilerplate criminal judgment forms from the Administrative Office of the Courts as a check box for indicating that “[t]he court finds just cause to waive costs.” The 2011 legislation also removed the special rule for active sentences, thereby bringing them within the rule applicable to all cases: no waiver of costs absent a finding of just cause. The change was made effective “July 1, 2011.” Id., sec. 32.6. Generally speaking, when the legislature changes cost provisions the court system applies the change to all costs assessed on or after the effective date, regardless of the offense date of the offense being sentenced. That interpretation does not run afoul of Ex Post Fact Clause because costs are not part of a defendant’s punishment. See State v. Arrington, __ N.C. App. __, 714 S.E.2d 777 (Aug. 16, 2011).
In 2012, the General Assembly gave even clearer direction about the findings required to waive court costs. The 2012 budget act, S.L. 2012-142, sec. 16.6(b), again amended G.S. 7A-304(a), this time to provide that costs could be waived “only upon entry of a written order, supported by findings of fact and conclusions of law, determining that there is just cause.” That change was effective July 2, 2012 upon the General Assembly’s override of the Governor’s veto of the budget. Forthcoming versions of the AOC forms will provide space for the court to record those findings of fact and conclusions of law.
The issue of cost waivers came up in a recent court of appeals case, State v. Patterson. In Patterson, the defendant was convicted of failing to register as a sex offender and sentenced to 22–27 months in prison. At sentencing, the court ordered the defendant to pay $1,954.50 in court costs, stating “I have no discretion but to charge court costs and I’ll impose that as a civil judgment.” Slip op. at 2. The defendant argued on appeal that the trial court erred when it said that it lacked discretion to waive the costs. For the reasons that follow, the court of appeals agreed and remanded for resentencing.
The first question the appellate court had to address is what version of G.S. 7A-304 should apply. The parties thought that the pre–July 1, 2011 version of the law should apply based on the defendant’s offense date (March 1, 2011). The court of appeals disagreed, saying that the case should have been governed by the law in effect on the date judgment was entered, August 17, 2011. Because the 2011 changes to the law were effective July 1, 2011, the new law should apply. (In other words, the court of appeals concurs with the AOC’s approach to the effective dates of costs changes, described above.)
That being the case, Mr. Patterson was not subject to the rule that active punishments are exempt from costs except when explicitly imposed. To the contrary, costs would apply to the case by default unless the judge waived them for good cause. However, to the extent that the trial judge’s comment indicated that he had “no discretion but to charge court costs,” it was in error, and so the case needed to be sent back for resentencing.
Patterson raises some other issues worth noting. First, the dollar amount of costs assessed ($1,954.50) was too high. There was no information in the record to support that amount, but the court of appeals noted that in any event it far exceeded the total amount permissible under G.S. 7A-304. (The defendant’s brief suggested that the amount may have included attorney fees, which should be assessed separately under G.S. 7A-455.) Finally, I noticed that the court said that amount would be imposed as a civil judgment. That’s an issue coming up more and more now that costs apply by default in active cases—where they cannot be collected as a condition of probation. I’ll say for now that docketing of costs is covered under G.S. 15A-1365, but it’s a complicated enough topic that I’ll save it for a future post.