Fines/Restitution

1. Austin v. US, 509 US, 125 L.Ed.2d 488, 113 S.Ct. (1993)
   Eighth Amendment excess fines clause held to apply to drug related forfeitures of property to United States under 21 USCS §§881(a)(4) and 881(a)(7).
2. Bearden v. Georgia, 461 US 660, 76 L.Ed.2d 221, 103 S.Ct. 2064 (1983)
   An individuals probation cannot be revoked for the non-payment of a fine.
3. Government of Virgin Islands v. Davis, 43 F.3d 41 (3rd Cir. 1994)
   US v. Castner, 50 F.3d 1267 (4th Cir. 1995)
   In determining imposition and amount of fine, federal district court must consider, among other things, the income, financial resources, and earning capacity of defendant, as well as burden that fine will impose upon defendant and his dependents.
4. Montana Dept. Of Revenue v. Kurth Ranch, 114 S.Ct. 1937 (1994)
   A punitive civil penalty imposed after a related conviction was barred even though the civil case was litigated contemporaneously with the criminal prosecution.
   
   Note: Restitution obligations imposed by either a civil or criminal court may be discharged under bankruptcy. See Pa. Welfare Dept. v. . Davenport, 495 US 552
5. PA. Welfare Dept. v. Davenport, 495 US 552, 109 L.Ed.2d 588, 110 S.Ct. 2126 (1990)
   Restitution obligations in criminal case held to constitute "debts" within meaning of 11 USCS § 101 (11) and are therefore dischargeable under Chapter 13 of the Bankruptcy Code.
6. State v. Whitney, 151 Ariz. 113, 726 P.2d 210
   Defendant was convicted before the Superior Court, Maricopa County, Cause No. CR-137394, Howard F. Thompson, J., for theft of a vehicle, and defendant appealed. The Court of Appeals, Meyerson, J., held that trial judge lacked authority to order payment of restitution to owner of other vehicle damaged in collision with stolen vehicle more than one-half hour after theft. Order of restitution modified.
7. US v. Arnoldt, 947 F.2d 1120 (4th Cir. 1991)
   Fine could not be imposed without sentencing court making specific findings on statutory factors.
8. US v. Eves, 932 F.2d 856 (10th Cir. 1991)
   US v. Edmonson, 962 F.2d 1535 (10th Cir. 1992)
   Fine for costs of incarceration is inappropriate in absence of punitive fine.
9. US v. Fair, 979 F.2d 1037 (5th Cir. 1992)
   Defendant may rely on pre-sentence report to satisfy burden of showing his inability to pay fine or cost of incarceration.
10. US v. Francisco, 35 F.3d 116 (4th Cir. 1994)
    District court is required to make specific factual findings regarding factors for imposition of fine because those findings are essential to effective appellate review of fines imposed and failure to make any findings is grounds for vacation of fine.
11. US v. Graham, 946 F.2d 19 (4th Cir. 1991)
    Defendants affluence is not appropriate basis for upward departure from fines specified in sentencing guidelines.
12. US v. Granados, 962 F.2d 767 (8th Cir. 1992)
    

    1. It is incorrect application of sentencing guidelines to impose a fine that the defendant has little chance of paying.
    2. Determination that defendant has sufficient assets to pay fine must be based on more than a statement to that effect in the pre-sentence report.

    
    
13. US v. Hannon,
    US v. Welborn,
    There is no statute of limitations applicable to a federal fine. (Authors note: this is not 100% correct: the government has 20 years to collect on fine before it is time barred).
    
    
14. US v. Kassar, 47 F.3d 562 (2nd Cir. 1995)
    US v. Lindo, 52 F.3d 106 (6th Cir. 1995)
    Written agreement dictating monthly installments of $20,000 towards payment of $600,000 fine imposed by sentencing court to be paid during defendant's probation was ineffective where it was drafted by probation officer; only sentencing court had authority to impose installment schedule to pay fine.
    
    
15. US v. Mack, 655 F.2d 843 (8th Cir. 1981)
    Sentence cannot be extended for nonpayment of fine.
    
    
16. US v. Rosa, 11 F3d 315 (2nd Cir. 1993)
    District court must afford defendant at least minimal opportunity to show that he lacks ability to pay fine proposed by the court.
    
    
17. US v. Walker, 39 F.3d 489 (4th Cir. 1994)
    Remand was required for specific findings with regard to defendant's ability to pay fine where pre-sentence report indicated negative net worth and lack of any ability to immediately satisfy fine.
    
    
18. US v. VQDA, 994 F.2d 149 (5th Cir. 1993)
    Courts are constitutionally limited in penalty they can impose for nonpayment of criminal fines because of inability to pay.
    

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Fundamental Error

1. State v. Bunting, 246 P.3d 352
   The trial court was obligated to follow case law, which required that six warnings be provided to a submitting defendant prior to a determination of his or her guilt or innocence; the trial court's failure to conduct a colloquy with appellant to ascertain whether her submission on the record was voluntarily made constituted fundamental error.
   
   
2. State v. Cox, 201 Ariz. 467, 468, 37 P.3d 437 (Ariz. App. Div. .1 2002)
   Any illegal sentence constitutes fundamental error, that will be reversed on appeal despite a lack of objection in the trial court, and whether the legal sentence is discovered immediately or 100 years later and legal sentence cannot be allowed to stand.
   
   
3. State v. Hardwick, 1 CA-CR 94-0303, COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT E, 183 Ariz. 649; 905 P.2d 1384; 1995 Ariz. App. LEXIS 250; 203 Ariz. Adv. . Rep. 5, November 7, 1995, Filed. REVERSED AND REMANDED
   The state's repeated references to an inadmissible document during cross-examination of the defendant constituted fundamental error. Thus, defendant was entitled to reversal of his convictions for child molestation and other related crimes.
   
   
4. State v. Kinney, 241 P.3d 914
   Police exceeded the permissible scope of an investigatory detention under the Fourth Amendment by questioning defendant after learning his name did not match the suspect's name. Defendant was not prejudiced by the denial of his motion to suppress his statement, because independent evidence proved that he was prohibited from possessing firearms.
   
   
5. State v. Nettz, (App. Div. .2 1997) 114 Ariz. 296, 560 P.2d 814
   A conviction may be set aside despite a lack of objection at trial if fundamental error was committed; fundamental error is such error as goes to the foundation of the case or which takes from any defendant a right essential to his defense; denial of a fair trial would be such error.
   
   
6. State v. Valenzuela,194 Ariz. 404, 984 P.2d 12; 1999 and Ariz. LEXIS 86; 298 Ariz. Adv. Rep. 26
   Fundamental error occurs when the defendant loses a right essential to his defense, was unable to receive a fair trial, or where the error goes to the very foundation of the defendants theory of the case.

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