Costs “Not Assessed”

Under G.S. 7A-304(a), when a defendant is convicted, court costs “shall be assessed,” unless the court waives them pursuant to a written order determining that there is just cause to do so. Assess or waive—those are, in general, the statutory options. They are not, however, the only things that happen in real life. We can see in the AOC’s annual report on court cost waivers (discussed and linked here) that there are other possible outcomes, including costs being flagged as “not assessed.” That is the subject of today’s post.

What does it mean to “not assess” a cost? The option to record a cost as not assessed was added to CCIS (the AOC’s computer system for criminal cases) in 2014, in response to concerns that “waived” had taken on a special meaning in 2011 with the introduction of the requirement for just cause findings. If the judge indicated that he or she did not want a particular cost to apply, but did not make the findings required to waive it, the “not assessed” code gave the clerk a more accurate way to memorialize what the judge actually did in the case.

But just because a code is always available does not mean it is always permissible. To the contrary, I think there are only a relatively small set of circumstances where “not assess” is a proper course of action. For example, when a person is sentenced for multiple offenses during the same term of court and would ordinarily be required to complete community service in all of them, G.S. 143B-708 says that only one fee gets assessed for the entire sentencing transaction. In the second and subsequent cases, then, the community service fee would properly be recorded as “not assessed.” There are also some offenses that are specifically exempted from court costs, such as rear seat belt violations under G.S. 20-135.2A and a failure to use headlights when windshield wipers are in use under G.S. 20-129. In those cases, the specific statutory provision trumps the ordinary statutory rule that costs apply unless waived, and it is therefore proper to not assess them.

In actuality, though, “not assessed” is used more broadly than that. In fact, I get the impression—anecdotally and from looking at the cost waiver report itself—that the practice of not assessing costs is increasing. I can imagine several reasons for that, including, among others, a sense that “not assessing” is preferable to waiving in that it doesn’t trigger the same requirements for findings, reporting under G.S. 7A-350, and—come December 1—notice and hearing for affected parties (discussed here). In that regard it’s in the same family as other some other practices I’ve discussed on the blog, like ordering costs as a civil judgment only (an increasingly common practice without any clear statutory basis, discussed here), or ordering costs and then immediately remitting them (something that gets recorded as a waiver in any event, discussed here).

I don’t see a clear basis for using “not assessed” as a way to remove an otherwise applicable cost without waiving it. As noted at the outset, costs shall be imposed unless waived. G.S. 7A-304. To say “I’m not waiving that cost, I’m just not assessing it,” feels a little like, “I’m not sleeping, I’m just resting my eyes.” By statute, you can’t not assess unless you waive. Absent an offense- or circumstance-specific cost exemption, or a finding that a particular cost is facially invalid in some way (like the former $50 improper equipment cost that went to the Statewide Misdemeanor Confinement Fund), “not assessed” should not be viewed as a generally applicable alternative to a waiver.