Clallam County Bar

In State v. Stone, Division Two of the Court of Appeals (Tacoma) has ruled the Jefferson County Superior Court pay or appear program is unconstitutional as applied.

State v. Stone___ Wn,App ___,(39912-1-II) (Div II) Jan. 4, 2011.

“We hold that enforcement proceedings for LFO [Legal Financial Obligation] payment obligations arising from criminal
sentences, which may result in incarceration, triggered a fundamental due process right to
appointed counsel denied Stone at the March 23 hearing. We also hold that the trial court
violated Stone’s due process rights by imposing jail time without inquiring at the March 23
hearing into Stone’s ability to pay and without making a finding at the October 2 hearing of his
willful failure to pay.”

CASE SUMMARY (per Washington Defender Association):

LFOs/Right to Counsel: Enforcement of LFOs falls under the criminal statutes and requires counsel to be provided if noncompliance may result in incarceration.
State v. Stone___ Wn,App ___,(39912-1-II) (Div II) Jan. 4, 2011.
Facts: Mr. Stone was ordered to pay LFOs as part of a criminal sentence. Without counsel being appointed to him, he signed an order to pay or appear in Jefferson County, requiring a minimum payment of $25.00 per month. He missed payments and failed to appear and did not contact the court numerous times. He was eventually incarcerated for non-payment and did not have counsel provided for the court hearings where jail was imposed. The court imposed jail because Mr. Stone did not pay and did not contact the court to offer any information about his circumstances. The court did not make any finding on Mr. Stone’s ability to pay but punished him for not paying and not appearing/calling. The state argued that the enforcement fell under the civil contempt statutes rather than the criminal statutes and that if counsel was required, Mr. Stone had waived that right.

Held: Enforcement proceedings for LFO payment arising from criminal sentences fall under the criminal statutes, here under 9.94B.040 [and not the civil contempt statutes]. If enforcement may result in incarceration then a fundamental due process right to counsel applies. Here, the trial court violated Mr. Stone’s due process rights when it sanctioned him without inquiring about Mr. Stone’s ability to pay and without finding a willful failure to pay and without providing counsel.

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