Not all types of relief from a criminal monetary obligation trigger the statutory requirements for notice, hearing, and findings.
The process for waiving court costs is more complicated than it used to be. In 2011 the legislature introduced a requirement (discussed here) for the court to make written findings of “just cause” in support of any cost waiver. Last year, it added a requirement (discussed here) that the court give written notice and an opportunity to heard to any directly affected party before waiving or remitting a cost or fine. I won’t get into the details again today, but suffice it to say there’s some red tape.
One thing I have stressed on this blog and elsewhere is that there are many different types of criminal monetary obligations. “Costs” are one type, but there are also fines, attorney fees, restitution, and other fees. The technical requirements for waiver apply only to true costs—those obligations set out in G.S. 7A-304(a) or incorporated by reference therein. So, you have to be precise about the obligation in question when determining what the court must do to offer relief from it.
That can be complicated, but unfortunately, that’s the easy part. Not only are there different categories of monetary obligations, there are also different statutory avenues for relieving defendants of the requirement to pay them. Those avenues include things like “remitting,” “exempting,” and “revoking” various obligations. And then there are some obligations that are truly discretionary, and thus require no justification or process whatsoever when the judge decides not to impose them. Let me talk about each one of those things in a little more detail.
Reduction. For most court costs, the judge’s choice at sentencing is impose or waive. For a small number of costs, there is a third option, which is reduce. The $600 laboratory and hospital costs for DNA, bodily fluids, toxicological testing, and controlled substances set out in G.S. 7A-304(a)(7), (8), and (8a), and the $600 testifying expert witness costs in G.S. 7A-304(11), (12), and (13) may be reduced or waived. Written findings must be entered in support of any decision to waive or reduce those costs, but a reduction does not trigger the requirement for 15-day notice and hearing for directly affected parties.
Striking the failure to appear cost. Ordinarily a defendant who fails to appear as scheduled must pay a $200 cost if he or she does not appear or otherwise dispose of the charge within 20 days after the scheduled appearance. G.S. 7A-304(a)(6). That same subdivision goes on to say that the court shall “waive” the fee “[u]pon a showing to the court that the defendant failed to appear because of an error or omission of a judicial official, a prosecutor, or a law-enforcement officer.” Though the statute uses the word “waive,” AOC has advised that a decision to strike the fee due to error removes it entirely and does not trigger the requirement for just cause findings.
Remission. As discussed here, “remit” and “waive” are two different things. A decision to remit a cost need not be supported by a written just cause finding. However, the court cannot remit a cost or a fine without first giving notice and an opportunity to be heard to any directly affected party. The court cannot remit restitution without giving the victim, the DA, and others notice and an opportunity to be heard as provided in G.S. 15A-1340.39.
Exemption. Fees not set out in G.S. 7A-304 or incorporated by reference therein aren’t costs. I’m talking here about probation supervision fees, electronic house arrest fees, satellite-based monitoring fees, and community service fees. For each of those fees—except the community service fee—the governing statute allows the court to “exempt” the defendant from paying it for good cause and upon motion of the defendant. G.S. 15A-1343(c1) (probation supervision fees); G.S. 15A-1343(c2) (EHA fees); G.S. 14-208.45 (SBM fees). No statute requires findings or notice to affected parties for an exemption. As for the community service fee, no statute expressly allows or precludes it from being remitted or otherwise forgiven.
Discretionary obligations. Fines are generally discretionary, and a court’s decision not to impose one requires no special findings or notice. On the back end, recently revised G.S. 7A-304(a) does require the court to give notice and an opportunity to be heard to any directly affected party when it remits a fine.
The only cost that is styled in discretionary terms is the probationary jail fee ($40 per day for every day of a split sentence). G.S. 7A-313. No findings are required in support of a decision not to impose it, because it’s not a waiver—it’s just a discretionary decision not to impose it. The court would, however, need to give notice and a hearing to affected parties before remitting it.
Revocation. Under G.S. 15A-1364, when a defendant’s default in the payment of a fine or costs is in good faith, one of the options available to the court is to “revoke[e] the fine or costs or the unpaid portion in whole or in part.” In context that appears to be something functionally similar to remitting a fine or cost, but unlike remission it does not appear to require any notice or hearing to affected parties.
Civil judgments. As discussed here, some monetary obligations may be docketed as a civil judgment in certain circumstances. When the court does that, it is not waiving or remitting the obligation.
I hear people say that the General Assembly has made it impossible to waive or remit costs, fees, and fines. Waivers may be harder to come by these days, but they are certainly not impossible—and it is reversible error for the court to operate under the mistaken impression that it has “no discretion but to charge court costs.” State v. Patterson, 223 N.C. App. 180 (2012). Furthermore, as this post shows, waivers are not the only game in town when it comes to offering relief from monetary obligations.