Some of you have probably seen the School’s bench card on Criminal Monetary Obligations (it is available here). It may sometimes be helpful as a background reference, but it’s not set up in a way that helps a court put the law into action.
You need a form.
In fact, many of you have already made your own. I have seen some of them, and they do different things. Some are really more petition than order—a place for a defendant to marshal the information a court might consider when evaluating a defendant’s ability to pay various fines and fees, like employment status, income, incarceration, and support obligations. Some provide boilerplate language to do things that I’m sure are done all the time (but don’t always have clear statutory authorization).
Last week, the Criminal Forms Subcommittee of the AOC Forms Committee considered a request to create a new statewide form for waiving and remitting monetary obligations. The Subcommittee voted to have staff prepare a draft order and petition for consideration, which they’ll do (in addition to their many other responsibilities).
Independent of that process, I prepared a draft order that you may find useful (and that may help inform the development of an eventual official form). It is available as a PDF here. I’ll also make it available as a Word file, Monetary Relief Form, so you can modify it to account for whatever local practices might exist in your part of the state. It is intended to be a sort of Swiss Army knife form that includes the appropriate statutory language to effectuate any order—at sentencing or later in the life of a case—related to costs, fines, fees, and restitution in a criminal case.
The form tracks the law. For example, if findings are required in support of an action (like the just cause finding required to waive costs at sentencing under G.S. 7A-304(a)), the form prompts the court to make them. If no finding is required, the court can rely on the boilerplate language without the need to add more. For example, the proper statutory language to excuse a person from paying probation supervision fees is to “exempt” him or her from paying them. G.S. 15A-1343(c1). It’s not a waiver. It’s not a remission. No findings are required. No notice by mail is required. The court can just do it “for good cause and upon motion of the defendant.” Id. And so that’s why that check-box is placed in a section separate from waiver and remission, along with other similar non-cost fees, like electronic monitoring device fees and satellite-based monitoring fees.
The form incorporates options that are on the books but that are perhaps redundant with other statutory options. For instance, the “Modification of Costs and Fines upon Default” section tracks the language of G.S. 15A-1364(c). That subsection functionally overlaps with G.S. 15A-1363, but uses different language that appears to fall outside the notice requirements associated with remission under G.S. 7A-304(a). And so it is set off in its own section—with different boilerplate language, and no reference to the notice. It’s frustratingly inelegant, but the law says what it says.
The form takes a cautious approach to civil judgments. Only those obligations for which law expressly allows a civil judgment (for costs and fines in response to default, G.S. 15A-1365) that are not addressed elsewhere are included on this form. The language to impose other permissible civil judgments already exists on other forms. For example, the language to docket a civil judgment for attorney fees already exists on the fee application (AOC-CR-225). That’s because attorney fees are always ordered as a civil judgment against the defendant from the outset. G.S. 7A-455. In fact, ordering another civil judgment for them on the criminal judgment is redundant and risks conflict with the fee application. If you want to amend the form to account for the rampant local practice of ordering other criminal obligations only as a civil judgment at the outset of a criminal case, you’re on your own.
I hope the form (or your modification of it) helps courts achieve a higher level of granularity in orders related to money. Please remember, this is not an official AOC form. It’s just my thoughts. I welcome your ideas about how it could be improved. I’ll post a draft petition for relief from monetary obligations later.
Thanks so much for this.