North Carolina Criminal Law NC Criminal Law

May community service fees be waived? I suspect some of you are thinking “I hope so, because they just were,” or something along those lines. It turns out to be a tricky question, I think.

First, let me be clear about what I mean by community service. I’m talking about community service ordered as a condition of probation, either as a special condition of probation under G.S. 15A-1343(b1)(6) or a community and intermediate condition of probation under G.S. 15A-1343(a1)(2). Those two conditions are essentially the same, and both require the probationer to perform community service and pay the fee required by law for it. (When the community and intermediate community service condition was initially added to the law in 2011, it did not include any reference to the fee, but an amendment in 2012—discussed here—added one.)

Community service ordered as a condition of probation, supervised or unsupervised, generally falls under the Community Service program described in G.S. 143B-708. (There is a background question about whether a judge may order community service outside the program, but let’s leave that aside for now.) Community service through the program requires the defendant to pay a fee of $250. Under G.S. 143B-708(c), that fee “shall be paid by all persons who participate in the program or receive services from the program staff.” Only one fee is required for each “sentencing transaction,” defined as all offenses considered and adjudicated during the same term of court.

In general, a person must pay the fee in full before participating in the community service program. A small exception is that the court in which the person is convicted may give the person of extension of time to pay or allow the service to begin before payment. G.S. 143B-708(c). (Prosecutors have similar authority for community service ordered in deferral cases, and probation officers have similar authority when the service was ordered through delegated authority.) Aside from that, the statute makes no mention of any authority to waive the fee.

The absence of any reference to a waiver is noteworthy. Court costs generally may be waived for just cause under G.S. 7A-304(a) (as discussed here)—but the community service fee is not set out in G.S. 7A-304, or incorporated into it by reference. Probation supervision fees may be waived “for good cause and upon motion of the person placed on supervised probation.” G.S. 15A-1343(c1). For electronic house arrest, the court “may exempt a person from paying the fees only for good cause and upon motion of the person.” G.S. 15A-1343(c2). For attorney fees, the court has express authority to order a defendant to pay “a portion, but not all, of the value of the legal services rendered” if, in the court’s opinion, that is what the person is financially able to pay. G.S. 7A-455(a). So, the legislature certainly knows how to include waiver or exemption provision when it wants to.

On the other hand, the legislature also knows how to say expressly that a fee may not be waived. Under G.S. 7A-455.1(b), the $60 attorney appointment fee is “mandatory” and “may not be remitted or revoked by the court.” I suppose the community service fee isn’t stated as mandatorily as that. But it does use the word shall. And the court of appeals has described such fees as a “non-discretionary byproduct of the sentence.” State v. Arrington, __ N.C. App. __, 714 S.E.2d 777 (2011); see also In re Greene, 297 N.C. 305 (1979) (holding that a judge does not have inherent power to continue prayer for judgment in a case when a certain punishment is made mandatory).

Be that as it may, the fee gets waived with some frequency. I imagine that may have something to do with its growth over time. When first enacted in 1984 the fee was $50. It grew to $100 in 1986, $200 in 2002, $225 in 2009, and $250 in 2010.

Even if it may not be waived on the front end, there may be support for a later remission of the fee. Under G.S. 15A-1363 a defendant may “at any time” petition the court for remission of a “cost” or any unpaid portion of it. The court of appeals has interpreted “cost” in that context as “fees and charges required by law to be paid to the courts or some of their officers, the amount of which is fixed by statute or court rule.” State v. Webb, 358 N.C. 92 (2004). Along the same lines, any alleged probation violation tied to a failure to pay the fee might be defensible on the grounds that the defendant had a good faith inability to pay. If the defendant showed that to be the case, the judge would have authority at that point under G.S. 15A-1364(c) to reduce or remit the fee.