§706-644 Consequences of nonpayment; imprisonment for contumacious nonpayment; summary collection. (1) When a defendant is sentenced pursuant to section 706-605, granted a conditional discharge pursuant to section 712-1255, or granted a deferred plea pursuant to chapter 853, and the defendant is ordered to pay a fee, fine, or restitution, whether as an independent order, as part of a judgment and sentence, or as a condition of probation or deferred plea, and the defendant defaults in the payment thereof or of any installment, the court, upon the motion of the prosecuting attorney or upon its own motion, may require the defendant to show cause why the defendant's default should not be treated as contumacious and may issue a summons or a warrant of arrest for the defendant's appearance. Unless the defendant shows that the defendant's default was not attributable to an intentional refusal to obey the order of the court, or to a failure on the defendant's part to make a good faith effort to obtain the funds required for the payment, the court shall find that the defendant's default was contumacious and may order the defendant committed until the fee, fine, restitution, or a specified part thereof is paid.

(2) When a fee, fine, or restitution is imposed on a corporation or unincorporated association, it is the duty of the person or persons authorized to make disbursement from the assets of the corporation or association to pay it from those assets, and their failure to do so may be held contumacious unless they make the showing required in subsection (1).

(3) The term of imprisonment for nonpayment of fee, fine, or restitution shall be specified in the order of commitment, and shall not exceed one day for each $25 of the fee or fine, thirty days if the fee or fine was imposed upon conviction of a violation or a petty misdemeanor, or one year in any other case, whichever is the shorter period. A person committed for nonpayment of a fee or fine shall be given credit toward payment of the fee or fine for each day of imprisonment, at the rate of $25 per day.

(4) If it appears that the defendant's default in the payment of a fee, fine, or restitution is not contumacious, the court may make an order allowing the defendant additional time for payment, reducing the amount of each installment, or revoking the fee, fine, or the unpaid portion thereof in whole or in part, or converting the unpaid portion of the fee or fine to community service. A defendant shall not be discharged from an order to pay restitution until the full amount of the restitution has actually been collected or accounted for.

(5) Unless discharged by payment or, in the case of a fee or fine, service of imprisonment pursuant to subsection (3), an order to pay a fee, fine, or restitution, whether as an independent order, as a part of a judgment and sentence, or as a condition of probation or deferred plea pursuant to chapter 853, may be collected in the same manner as a judgment in a civil action. The State or the victim named in the order may collect the restitution, including costs, interest, and attorney's fees, pursuant to section 706-646. The State may collect the fee or fine, including costs, interest, and attorney's fees pursuant to section 706-647.

(6) Attorney's fees, costs, and interest shall not be deemed part of the penalty, and no person shall be imprisoned under this section in default of payment of attorney's fees, costs, and interest. [L 1972, c 9, pt of §1; am L 1986, c 314, §36; gen ch 1992; am L 1996, c 137, §2; am L 1998, c 269, §6; am L 2000, c 205, §6]

COMMENTARY ON §706-644

The Code equates a fine with a court-imposed civil obligation in favor of the State. Thus the contempt power is utilized to enforce that obligation. Subsection (1) provides that the court may summon the defendant, or issue a warrant for the defendant's arrest, and order the defendant to show cause why the defendant's failure to pay the fine should not be regarded by the court as contumacious. If the defendant cannot, the defendant will be imprisoned as in the cases of civil contempt.

In the case of convicted corporations or unincorporated associations, subsection (2) places a similar duty to pay, or to justify default of payment, on the officer or agent of a corporation or unincorporated association authorized to distribute its assets.

Subsection (3) sets the limit on the period of imprisonment for contumacious nonpayment of fines. The terms are intended to be coercive, but not debilitating. The credit allowed is the same as that under previous law.[1]

Subsection (4) permits the court to take a flexible approach to noncontumacious default. The court may lower the amount of each payment or may revoke the fine in whole or in part.

Subsection (5) makes clear that all the processes for collection of an unpaid civil judgment are available for collection of a fine. This subsection is in accord with prior law.2

SUPPLEMENTAL COMMENTARY ON §706-644

Act 137, Session Laws 1996, amended this section to provide that fines and costs may be collected in the same manner as a civil judgment, and that the state attorney general may institute proceedings to collect the fine and costs, including interest and attorney's fees, as a civil judgment in the court of appropriate jurisdiction. The legislature found that the Act (which also amended the traffic code by enacting a new section with similar provisions) would assist the judiciary in collecting fines and costs imposed in traffic and criminal cases. The Act also deleted the first sentence of subsection (5) to remove potential conflict between existing law and the provisions of the Act. House Standing Committee Report No. 379-96, Senate Standing Committee Report No. 2987.

Act 269, Session Laws 1998, amended this section by, among other things, allowing victims of crime to enforce a criminal restitution order in the same manner as a civil judgment. Conference Committee Report No. 89.

Act 205, Session Laws 2000, amended this section by adding that the nonpayment of any fees, in addition to the nonpayment of any fine or restitution ordered by a court, would be subject to the penalties and consequences imposed under this section.

Case Notes

Provision relating to imprisonment for contumacious nonpayment mentioned. 60 H. 160, 587 P.2d 1220 (1978).

From and after July 20, 1998, the amended provisions of this section statutorily provide for free standing orders of restitution (FSOs) to be imposed, inter alia, as a condition of probation; where original sentence of defendant on March 29, 1995, made restitution a condition of probation, restitution could not later be ordered as an FSO pursuant to this section. 103 H. 269, 81 P.3d 1184 (2003).

Where a case predates July 20, 1998, the effective date of amendments to this section, a free standing order of restitution (FSO) could have been separately and independently imposed at the time of a defendant's original sentencing, in addition to any other sentence such as probation or imprisonment; however, an FSO could not be imposed as a modification of a probation condition, or as a new term of probation following revocation, or otherwise. 103 H. 269, 81 P.3d 1184 (2003).

Mentioned: 55 H. 632, 525 P.2d 1119 (1974).

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§706-644 Commentary:

1. See H.R.S. §712-5.

2. See id. §§712-1 and 712-3.