The practice of ordering a civil judgment for costs and fines at the outset of a criminal case has run its course.
That’s the rule from State v. Santana, ___ N.C. App. ___ (2025), which I summarized earlier in the week. To recap, the defendant in Santana was convicted of drug trafficking and other offenses and ordered to pay a $250,000 fine. As is often the case for defendants sentenced to active time, the trial court ordered the fine and other costs as a civil judgment. The defendant argued on appeal that the trial court had no authority to docket the money immediately as a civil judgment.
The court of appeals agreed. Under G.S. 15A-1365, costs and fines can be docketed civilly upon default. A judgment docketed at that time “becomes a lien on the real estate of the defendant in the same manner as do judgments in civil actions.” G.S. 15A-1365. But, the court held in Santana, they cannot be docketed immediately. Had the General Assembly intended to authorize immediate docketing of fines and costs, the court said, “it could have done so as it did with attorney’s fees.” Slip op. at 7 (citing G.S. 7A-455(b)).
The court noted that the fine the trial court ordered was due immediately (as costs and fines are, unless otherwise specified by the court, G.S. 15A-1362(b)). But the trial court erred by docketing a civil judgment for it without first determining that the defendant had defaulted on it. The court added that the defendant was prejudiced by the early entry of the judgment, as it had already accrued over $17,000 in interest. The court remanded the matter to the trial court to impose the fine and costs as part of its criminal judgment, or to determine whether the defendant has defaulted, at which point it could enter a new civil judgment.
This is a high-volume issue. It has become a common practice for our courts to enter fines and costs as civil judgments in any case that results in an active punishment (and sometimes in the probationary cases too). I’ve written about it numerous times over the years—regarding civil judgments for restitution in 2009, for court costs in 2012, for monetary obligations generally in 2016, and Schoolhouse Rock–style in 2017. (For that last post, graphic novel illustrator Jason Whitley drew the anthropomorphic civil judgment that was adapted for today’s post.)
How did we get here? Here’s what I think happened. Before 2011, court costs did not apply when the judgment imposed an active sentence unless the trial court explicitly said so. G.S. 7A-304 was amended that year to say that court costs apply in every case, regardless of sentence, unless the court makes a finding of just cause to grant a cost waiver. S.L. 2011-145, sec. 15.10.(a).
In 2012 the legislature added a requirement that the court make findings of fact and conclusions of law in support of any decision to waive costs. In 2017, it added the requirement to provide 15-day written notice by first-class mail and an opportunity to be heard by any government entity that is directly affected by a cost waiver. S.L. 2017-57.
Long story short, waiving costs and fines became harder at the very same time that costs were being applied to defendants serving active time. Add to that the practical realization that defendants serving an active sentence are less likely to pay their money. Against that backdrop, the practice of ordering criminal obligations as civil judgments took hold as a sort of pressure release.
And it became routine—with variations in local practice throughout the state. Training materials for clerks from the Administrative Office of the Courts track the subtle, evolving differences between monetary obligations owed criminally, civilly, or (to use the language of the materials) as a “dual obligation.” An excerpt from those materials captures the complexity of the issue:
An obligation may be due BOTH criminally and civilly if ordered by a judge. The courtroom clerk may need to seek clarification of the judge’s intent. For instance, if the judge orders costs be docketed, the clerk may want to seek clarification as to whether or not the judge intends for the costs to also be owed criminally. Similarly, the courtroom clerk may seek clarification if the judge orders attorney fees in open court at a revocation hearing. Since such fees are normally docketed as a result of a signed Attorney Fee Application Order, did the judge also intend for the amount to be owed criminally?
N.C. Administrative Office of the Courts, Criminal Monies Owed as Criminal and/or Civil Judgments: Instructor Guide (Jan. 4, 2017).
Despite this complexity, there are a few other related things we know for sure.
First, remember that under State v. Crew, 281 N.C. App. 437 (2022), a court has no authority to order a civil judgment for restitution for an offense not covered under the Crime Victims’ Rights Act.
Second, attorney fees are a civil judgment from the outset. That’s just the way the statute for them is written. G.S. 7A-455. They are thus permissible, and no finding of default is required before docketing them.
And finally, interest accrues on civil judgments for fines, attorney fees, and restitution at 8 percent per annum. G.S. 24-1. There is no interest on a judgment for costs. G.S. 24-5.
After Santana, it seems like thousands of judgments ordered civilly without a finding of default are probably subject to challenge. But that doesn’t necessarily mean that the practice of ordering civil judgments for monetary obligations has run its course. Even in Santana’s case, the trial court will have the opportunity on remand to consider whether the defendant is in default on payment of the fine, and if so, it may docket a judgment. Will anyone collect on it? I discussed that here.