Virginia Lawyers Weekly//January 12, 2019
Virginia Lawyers Weekly//January 12, 2019//
Where defendant has moved to remit fines and costs associated with his plea-based convictions of indecent exposure and three counts of obscene sexual display, the expenses associated with court-ordered sex offender treatment, GPS monitoring and a sex offender polygraph cannot be remitted under Code § 19.2-358 (A-C). The costs of these probation conditions are not “fines, costs, forfeitures, or penalties” within the statute’s meaning.
The fines and costs the court assessed for defendant’s four offenses do fall within the statute and that portion of the motion to remit remains under advisement.
Defendant pleaded guilty to four sex offenses. The court suspended some of the jail time and a portion of the fines. The court ordered sex offender treatment, a sex offender polygraph and GPS monitoring as part of his probation.
On three different occasions, a probation officer reported that defendant was violating his probation because he was not complying with the court’s conditions. Defendant said he could not afford to pay. The court found defendant in violation twice. After the third violation report, defendant moved the court to remit the $1,602 in fines and costs associated with his convictions. He also asked the court to remit the polygraph cost of $250, the monthly $300 cost of GPS monitoring, and the $50 weekly cost of sex offender treatment.
Code § 19.2-358 (A-C) allows a court to remit “fines, costs, forfeitures, or penalties” if a defendant cannot pay and the failure to pay is not an “intentional refusal” or a failure to make a “good faith effort to obtain the necessary funds.
The first inquiry is whether the costs sought to be remitted are “fines, costs, forfeitures, or penalties.”
The sum of $1,602, which includes $1,202 in suspended fines and costs and $400 in unsuspended fines “is clearly covered by the statute.”
As explained in Wicks v. City of Charlottesville, 215 Va. 274 (1974), the costs “incident to [a defendant’s] prosecution and conviction … [are] an exaction ‘simply for the purpose of reimbursing to the public treasury the precise amount which the conduct of the Defendant has rendered it necessary should be expended for the vindication of the public justice of the State and its violated laws. It is money paid, laid out and expended for the purpose of repairing the consequences of the Defendant’s wrong.’”
Defendant argues that because the court ordered the polygraph, sex offender treatment and the GPS monitoring and he cannot afford to pay, these can also be classified as “fines, costs, forfeitures, or penalties” that can be remitted under the statute. He offers no support for his statutory interpretation.
The costs of defendant’s probation conditions do not reimburse the treasury for the costs of his prosecution and conviction. Rather, the conditions are “imposed as an alternative to depriving Defendant of his liberty.” The conditions are related to the objectives of deterrence and rehabilitation, and, in the case of GPS monitoring, public safety.
“That each condition carries an associated cost does not transmute it from a condition of the sentences into fines, costs, forfeitures, or penalties.”
As a result, the statute does not apply to these expenses.
The second inquiry is whether defendant’s failure to pay is excusable. A court, in its “sound judicial discretion,” may excuse payment on the ground of financial hardship. Defendant has offered evidence of financial hardship. The court declines to make a hardship determination at this point and will continue the motion under advisement with regard to the fines and costs of conviction.
The motion to remit is denied as to the sex offender polygraph, sex offender treatment and GPS monitoring.
Commonwealth v. Greenway. Case No. CR-1603339-01, Oct. 29, 2018; Chesterfield Cir. Ct. (Johnson). VLW 018-8-107, 9 pp.