Legal Questions for our Verified Lawyers #4

[AZlawyer]

Thank you AZLawyer for your response and I see RHornsby says in another quote that this kind of debt can lead to the cancellation of your drivers license and can hound you for the rest of your life. But you probably know all that already and it's not why I am back. :loser:

Can HHJP's order for special costs be appealed and to whom? The same Appeals Court in Daytona Beach, as the Defense most recently appealed to re the probation?

Yes, the cost award can be appealed, the same as any other order.

..quick question ...if kc were to file for bankruptcy, is it correct that costs owed to the Court or the IRS would not be wiped out/included?

..thanks so much in advance...( for ALL that you do! )

I haven't done much bankruptcy work lately, but my recollection is that tax debts and other debts owed to governmental agencies are not dischargeable in bankruptcy (i.e., they continue as debts even after the bankruptcy).

 

[bonniez451]

Hello I hope your days are going well and I'm glad that you all are here to still answer questions. I do not know if the query I have has been asked and answered but, I will thank you for your indulgence.
My question is as it has been stated this had been a publicized trial on TV etc how does that differ from lies being told in public to a live trial? Isn't that considered public domain? Thank you for your time.

 

[AZlawyer]

Hello I hope your days are going well and I'm glad that you all are here to still answer questions. I do not know if the query I have has been asked and answered but, I will thank you for your indulgence.
My question is as it has been stated this had been a publicized trial on TV etc how does that differ from lies being told in public to a live trial? Isn't that considered public domain? Thank you for your time.

Yes, the trial would have been public even if it were not televised, but then only about 50 people would have seen it instead of millions.

 

[ohreally]

Thank you to all the lawyers that take the time to answer our questions. My question is, is there a risk for the defense to take the investigative cost issue to the appeals court? Could the appeals court look at the issue and decide that she owes the whole $500,000? It is not that I think they would increase the amount, just is is possible. Thank you.

 

[AZlawyer]

Thank you to all the lawyers that take the time to answer our questions. My question is, is there a risk for the defense to take the investigative cost issue to the appeals court? Could the appeals court look at the issue and decide that she owes the whole $500,000? It is not that I think they would increase the amount, just is is possible. Thank you.

I suppose the State could cross-appeal after the defense appeals and ask the appellate court to reverse the part of the order denying certain costs. But IMO the appellate court is extremely unlikely to allow any additional costs. And the State could appeal whether or not the defense appeals--so this isn't really a risk that would be caused by a defense appeal.

 

[rotterdam]

I have a question and hope I can formulate it correctly.
The restitution sought by the State from KC is that a civil fine as opposed to a criminal fine?
If yes, what are the major differences if any, in other words what are the vehicles and/or reinforcement tools in trying to collect a criminal fine vs civil fine from an individual?.
Could it affect the probation as to successful completion when no attempt is made to pay it. Is there a statute of limitation on such an award to the State like a credit card debt.?
Tks so much in advance. I tried to do my own research but my head is swimming.

 

[AZlawyer]

I have a question and hope I can formulate it correctly.
The restitution sought by the State from KC is that a civil fine as opposed to a criminal fine?
If yes, what are the major differences if any, in other words what are the vehicles and/or reinforcement tools in trying to collect a criminal fine vs civil fine from an individual?.
Could it affect the probation as to successful completion when no attempt is made to pay it. Is there a statute of limitation on such an award to the State like a credit card debt.?
Tks so much in advance. I tried to do my own research but my head is swimming.

The $$$ is not restitution or a fine, it is a judgment for costs of investigation. As such, I assume it is collectible like any other judgment: from assets and income, except for such portions of assets and income as are exempt by law.

I don't think payment of the cost judgment is a requirement of her probation.

In AZ, judgments expire every 5 years but can be renewed very easily. Likely there is a similar process in Florida.

 

[Oldsoul2]

The $$$ is not restitution or a fine, it is a judgment for costs of investigation. As such, I assume it is collectible like any other judgment: from assets and income, except for such portions of assets and income as are exempt by law.

I don't think payment of the cost judgment is a requirement of her probation.

In AZ, judgments expire every 5 years but can be renewed very easily. Likely there is a similar process in Florida.

So basically any money she earns over the rest of her life is subject to contributing partial repayment towards this until it is paid...have fun with hussling your book KC, imo I personally don't want to help you repay it

 

[MiraclesHappen]

I have a question and hope I can formulate it correctly.
The restitution sought by the State from KC is that a civil fine as opposed to a criminal fine?
If yes, what are the major differences if any, in other words what are the vehicles and/or reinforcement tools in trying to collect a criminal fine vs civil fine from an individual?.
Could it affect the probation as to successful completion when no attempt is made to pay it. Is there a statute of limitation on such an award to the State like a credit card debt.?
Tks so much in advance. I tried to do my own research but my head is swimming.

So basically any money she earns over the rest of her life is subject to contributing partial repayment towards this until it is paid...have fun with hussling your book KC, imo I personally don't want to help you repay it

Hi Everybody:seeya:


Allow me to add a "few" words to what Az has told us:


938.27 Judgment for costs on conviction.—
(1) In all criminal and violation-of-probation or community-control cases, convicted persons are liable for payment of the costs of prosecution, including investigative costs incurred by law enforcement agencies, by fire departments for arson investigations, and by investigations of the Department of Financial Services or the Office of Financial Regulation of the Financial Services Commission, if requested by such agencies. The court shall include these costs in every judgment rendered against the convicted person. For purposes of this section, “convicted” means a determination of guilt, or of violation of probation or community control, which is a result of a plea, trial, or violation proceeding, regardless of whether adjudication is withheld.
(2)(a) The court shall impose the costs of prosecution and investigation notwithstanding the defendant’s present ability to pay. The court shall require the defendant to pay the costs within a specified period or in specified installments.(b) The end of such period or the last such installment shall not be later than:
1. The end of the period of probation or community control, if probation or community control is ordered;2. Five years after the end of the term of imprisonment imposed, if the court does not order probation or community control; or
3. Five years after the date of sentencing in any other case.
However, in no event shall the obligation to pay any unpaid amounts expire if not paid in full within the period specified in this paragraph.

(c) If not otherwise provided by the court under this section, costs shall be paid immediately.
(3) If a defendant is placed on probation or community control, payment of any costs under this section shall be a condition of such probation or community control. The court may revoke probation or community control if the defendant fails to pay these costs.(4) Any dispute as to the proper amount or type of costs shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of costs incurred is on the state attorney. The burden of demonstrating the financial resources of the defendant and the financial needs of the defendant is on the defendant.


This is the statute that the State of Florida was using when the costs were requested and subsequently awarded.

The amount now owing can be made a special condition of probation.

Failure to pay can be the grounds to violate probation.

The Court can order specific installments.
The Court can order that ther entire amount be paid forthwith.

The clock is ticking and the outside date by which everything must be paid in full is 5 years.
BUT,
The financial obligations do not, no matter what, expire at the end of the 5 years if the sum has not been paid.

I don't:sleuth: see any expiration date, period.
(Nowhere to run; Nowhere to hide):escape:

The statute sets out who has what burden. The burden was on the prosecution to prove the amount due and owing.

The burden is also on the defendant, by law, to show an inability to pay.
Again, I see no cutoff date so this would be an ongoing burden for the defense.
If she cannot pay it today, the burden will remain tomorrow so that it must be shown again, that there is an inability to pay. :noooo:

My opinion:wolf:
MH

Yes:yes: this is long and drawn out. But alas,

I cannot access the full smilie page:tears:

We all know that it is almost beyond my ability to address legal issues without the blatant overuse of the beloved smilies. :crazy:

 

[krkrjx]

Hi Everybody:seeya:


Allow me to add a "few" words to what Az has told us:


938.27 Judgment for costs on conviction.—
(1) In all criminal and violation-of-probation or community-control cases, convicted persons are liable for payment of the costs of prosecution, including investigative costs incurred by law enforcement agencies, by fire departments for arson investigations, and by investigations of the Department of Financial Services or the Office of Financial Regulation of the Financial Services Commission, if requested by such agencies. The court shall include these costs in every judgment rendered against the convicted person. For purposes of this section, “convicted” means a determination of guilt, or of violation of probation or community control, which is a result of a plea, trial, or violation proceeding, regardless of whether adjudication is withheld.
(2)(a) The court shall impose the costs of prosecution and investigation notwithstanding the defendant’s present ability to pay. The court shall require the defendant to pay the costs within a specified period or in specified installments.(b) The end of such period or the last such installment shall not be later than:
1. The end of the period of probation or community control, if probation or community control is ordered;2. Five years after the end of the term of imprisonment imposed, if the court does not order probation or community control; or
3. Five years after the date of sentencing in any other case.
However, in no event shall the obligation to pay any unpaid amounts expire if not paid in full within the period specified in this paragraph.

(c) If not otherwise provided by the court under this section, costs shall be paid immediately.
(3) If a defendant is placed on probation or community control, payment of any costs under this section shall be a condition of such probation or community control. The court may revoke probation or community control if the defendant fails to pay these costs.(4) Any dispute as to the proper amount or type of costs shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of costs incurred is on the state attorney. The burden of demonstrating the financial resources of the defendant and the financial needs of the defendant is on the defendant.


This is the statute that the State of Florida was using when the costs were requested and subsequently awarded.

The amount now owing can be made a special condition of probation.

Failure to pay can be the grounds to violate probation.

The Court can order specific installments.
The Court can order that ther entire amount be paid forthwith.

The clock is ticking and the outside date by which everything must be paid in full is 5 years.
BUT,
The financial obligations do not, no matter what, expire at the end of the 5 years if the sum has not been paid.

I don't:sleuth: see any expiration date, period.
(Nowhere to run; Nowhere to hide):escape:

The statute sets out who has what burden. The burden was on the prosecution to prove the amount due and owing.

The burden is also on the defendant, by law, to show an inability to pay.
Again, I see no cutoff date so this would be an ongoing burden for the defense.
If she cannot pay it today, the burden will remain tomorrow so that it must be shown again, that there is an inability to pay. :noooo:

My opinion:wolf:
MH

Yes:yes: this is long and drawn out. But alas,

I cannot access the full smilie page:tears:

We all know that it is almost beyond my ability to address legal issues without the blatant overuse of the beloved smilies. :crazy:

OK, this raises questions for me.

Casey was acquitted of the murder and abuse charges. Convicted on the lying charges. The judgment for costs of the investigation is based on the conviction for lying...right? So the state has every right to collect, and the judgment never goes away until it's paid. That part I got.

I do not understand the part where probation can be extended if these debts are not paid by the end of the probation period. That makes perfect sense when a judgment for costs is due to the crime one is doing probation for but, given Casey is on probation for something totally unrelated to the lying charges from which this judgment arose, could this judgment going unpaid still have a negative affect on her probation?

 

[Katprint]

OK, this raises questions for me.

Casey was acquitted of the murder and abuse charges. Convicted on the lying charges. The judgment for costs of the investigation is based on the conviction for lying...right? So the state has every right to collect, and the judgment never goes away until it's paid. That part I got.

I do not understand the part where probation can be extended if these debts are not paid by the end of the probation period. That makes perfect sense when a judgment for costs is due to the crime one is doing probation for but, given Casey is on probation for something totally unrelated to the lying charges from which this judgment arose, could this judgment going unpaid still have a negative affect on her probation?

I'm sure this varies a bit from state to state, but every probation I have ever seen includes a requirement that the probationer "obey all laws." I do not know whether paying court-ordered restitution for an unrelated crime would be covered by that catch-all in Florida. Florida has a reputation for being unusually protective of debtors.

Also, I would be surprised if failure to pay restitution due to inability to pay could constitute a probation violation. She should probably make some effort to set up a modest payment plan based on her earning capacity as a receptionist or to negotiate a percentage of book/movie/other royalties type of settlement (like Willie Nelson did re his unpaid taxes) to establish that her failure to pay $200K within one year is not an intentional violation of the restitution order. She should also do something about her $100K of unpaid income taxes.

Katprint
Always only my own opinions

 

[rotterdam]

Thanks so much for your previous answers regarding probation requirements.
However, am back again with another pesky question.

http://www.ninthcircuit.org/news/Hi...sts of Investigation - Orange Co. Sheriff.pdf

Near the end it has " Further , this payment obligation is hereby reduced to a civil judgment against defendant KC".

:waitasecoes that mean it can be possibly discharged under a Chapter 7 bankruptcy filing in federal court?
Based on HHJP latest order , it does not look like a "criminal restitution?" any more but a dischargeable? State civil judgment.
It looks like a paper tiger to me now after HHJP sneaked that statement in his order.

I apologize to be such a pain. This stuff is so confusing with all those different State Statutes and many Fed Statutes apparently trumping them.

 

[AZlawyer]

Thanks so much for your previous answers regarding probation requirements.
However, am back again with another pesky question.

http://www.ninthcircuit.org/news/Hi...sts of Investigation - Orange Co. Sheriff.pdf

Near the end it has " Further , this payment obligation is hereby reduced to a civil judgment against defendant KC".

:waitasecoes that mean it can be possibly discharged under a Chapter 7 bankruptcy filing in federal court?
Based on HHJP latest order , it does not look like a "criminal restitution?" any more but a dischargeable? State civil judgment.
It looks like a paper tiger to me now after HHJP sneaked that statement in his order.

I apologize to be such a pain. This stuff is so confusing with all those different State Statutes and many Fed Statutes apparently trumping them.

If I recall correctly, a state court civil judgment held by a governmental agency is NOT dischargeable in bankruptcy.

The "judgment" sentence was not "sneaked" in--it was necessary and is a good thing for the State. It empowers the State to take action to collect the $$$.

 

[Sha]

Nope. It's really really over.

Since there is no statute of limitations on murder, why do they have this "double jeopardy" nonsense? IMHO, there should be nothing of the kind!! Either there's a statute of limitations, or no statute of limitations. Am I making any sense?!

I'm sorry - I meant that as a question to our legal panel. Why don't they do away with the "double jeopardy" nonsense if there's no statute of limitations on murder? Thanks.

 

[AZlawyer]

Since there is no statute of limitations on murder, why do they have this "double jeopardy" nonsense? IMHO, there should be nothing of the kind!! Either there's a statute of limitations, or no statute of limitations. Am I making any sense?!

I'm sorry - I meant that as a question to our legal panel. Why don't they do away with the "double jeopardy" nonsense if there's no statute of limitations on murder? Thanks.

I don't understand the connection between the two issues. :waitasec:

 

[Sha]

I don't understand the connection between the two issues. :waitasec:

Sooner Fan#1: Do you understand what I'm trying to say? Seems to me, if there's no statute of limitations on murder, then you shouldn't get away with it PERIOD. None of this double jeopardy stuff.

Oops - nevermind.

 

[AZlawyer]

Sooner Fan#1: Do you understand what I'm trying to say? Seems to me, if there's no statute of limitations on murder, then you shouldn't get away with it PERIOD. None of this double jeopardy stuff.

Oops - nevermind.

Sha, you can find lots of resources online defending and challenging the basis for the double jeopardy rule, which has existed in one form or another in many societies going back to ancient times. Justifications include preventing repeated prosecutorial harassment of an individual (for improper reasons) and allowing the innocent to "rest easy" after an acquittal. Generally, the rule is considered to be more important when applied to serious crimes like murder, not less important. But there are certainly people who disagree.

 

[Carolina Girl]

Is it not the job of the Prosecutor to present evidence that puts the defendant in a bad light? I will never understand why the video released today could not be presented at trial. I will always feel like the Judge erred on the side of caution. Both Judges.

 

[AZlawyer]

Is it not the job of the Prosecutor to present evidence that puts the defendant in a bad light? I will never understand why the video released today could not be presented at trial. I will always feel like the Judge erred on the side of caution. Both Judges.

First of all, the reason it was not presented at trial was because the prosecution did not offer it as evidence, so HHJP never ruled on that issue. HHJS never said the video could not be used at trial. He said it could not be released to the public prior to trial. (Having seen it, it is perfectly obvious why the prosecution didn't offer it as evidence--it is useless. My guess is that it would have been excluded as irrelevant if anything.)

Evidence cannot be excluded at trial just because it puts the defendant in a bad light. As you said, the whole point is to prove that the defendant did a bad thing. But evidence can be excluded on the ground that whatever probative value it has (the tendency to prove that the defendant is guilty of the THING HE/SHE HAS BEEN CHARGED FOR) is outweighed by its prejudicial value (the tendency to show that the defendant is bad for some OTHER REASON).

So the more that the evidence tends to show the defendant is guilty, the more PROBATIVE value it has, and the more likely it is that the jury WILL see it.

 

[MsMacGyver]

Hope someone can answer my question...Please
While listening to the CM trial...TH were discussing the jurors and taking notes. Said taking notes while witness is testifying could distract from watching body language.
I thought I heard them say that the jurors will receive a daily transcript of witness testimony.
My question is...Is this common practice in most trials, receiving daily transcripts of witness testimony?...Thanks!