Filing a Motion to Remit (Remove) Legal Financial Obligations in District or Municipal Court Instructions and Forms October 2017

Transcription

1 EN October Filing a Motion to Remit (Remove) Legal Financial Obligations in District or Municipal Court Instructions and Forms October

2 EN October Contents Section 1: Questions and Answers... 1 A. Should I use this packet?... 1 B. What forms are in this packet?... 1 C. How do I label each form?... 1 Section : How to Fill Out each Form... A. Instructions for the Motion to Remit/Waive Fines and Costs... B. Instructions for the Notice of Issue (Hearing)... C. Instructions for the Financial Statement... D. Instructions for the Declaration of Defendant... E. Instructions for the Order... Section : Next Steps... A. I filled out the forms. Now what?... B. I served and filed the motion. Now what?... C. How do I represent myself at the hearing?... Table of Contents- Page 1

3 EN October Filing a Motion to Remit (Remove) Legal Financial Obligations in District or Municipal Court Section 1: Questions and Answers A. Should I use this packet? Yes, but only if one of these is true: you have a misdemeanor or gross misdemeanor criminal conviction in district or municipal court your driver s license is suspended for failure to pay fines on a misdemeanor or gross misdemeanor offense Read Legal Financial Obligations (LFO s) before using this packet. If you have a felony criminal conviction in a superior court, use Filing a Motion to Remit Legal Financial Obligations in Superior Court. You can get it at If you have traffic infractions holding your license, My Driver s License was Suspended. Can I Get it Back has more info. B. What forms are in this packet? Motion to Remit/Waive Fines and Costs Financial statement General Rule form Declaration of Defendant Notice of Issue (Hearing) Affidavit of Service C. How do I label each form? Caption: The caption is located on the upper left box of the first page. If you have a case filed in municipal court, write City of [whatever city it is] v. [Your Name], DEFENDANT. If your case was in District Court, write State of Washington v. [Your Name], DEFENDANT. You must do this on the first page of each form. Filing a Motion to Remit LFO s - Page 1

4 EN October Case number: This will be on your court paperwork or Department of Licensing records, if these fines are suspending your license. Footer: At the bottom-right corner of every page, you must put your name and address. If you are filing motions for more than one case number, each set must have the correct case number, county, and caption. Section : How to Fill Out each Form A. Instructions for the Motion to Remit/Waive Fines and Costs Fill out the caption. I. Introduction and Relief Requested. In the blank, put your full legal name. II. Evidence Relied Upon. Read this section. III. Legal Authority. Read this section. IV. Conclusion & Prayer for Relief. This section is very important. You are briefly stating what you want the judge to do with your case. Check all boxes that apply. The state Supreme Court in City of Richland v. Wakefield has held that if your only income is Social Security disability benefits, a court cannot order you to use any of your benefits to pay your LFO s. If you get Social Security disability benefits, you should mention the Wakefield case in your motion. Signature and Date. Sign and date the motion on the last page. Print or type your address. If you want the judge to see more paperwork that will help your case, write See Attachment #, name of document at the end of a sentence in the Facts section. Example 1: I am disabled. My only source of income is SSI. See Attachment, Copy of Social Security Award. Example : I am a full-time student. My only source of income is a PEL grant. See Attachment, PEL Grant award letter. Example : I suffer from multiple illnesses including diabetes and PTSD. See Attachment, Medical Report, Patient history. B. Instructions for the Notice of Issue (Hearing) Fill out the caption and footer. Filing a Motion to Remit LFO s - Page

5 EN October Getting a hearing date and time: Call the court clerk. Tell them what type of motion you are filing and ask for a hearing date. Every county has its own rules about many days before a hearing to file a motion. Ask the clerk when you must file the motion. In most counties, it is at least seven days before the hearing. Put the information they give you in the appropriate spaces. Sign your name and put the date you signed. C. Instructions for the Financial Statement You must put all your income and expenses on this sheet. Case Name and Case Number: In the blanks, put the caption and case number. 1. Put your name.. Check the box if anyone living in your household depends on you for support. Put how many people depend on you. Put their ages.. My Monthly Income: Check to show if you have a job. If you are working, put your employer s name. Gross pay per month: put your pay before taxes. Take home pay per month: put your pay after taxes. You may not be able to give exact amounts if your income is not steady or it changes every month. In that case, you must note that you are giving approximates or averages.. Other Sources of Income per Month in my Household: Put any non-work income here. In Source, put where the income comes from. (Example: veterans benefits.) Next to the dollar sign, put how much. Sub-total: If you have income from more than one source, add it all up here. Check the box underneath if you get food stamps. Total Income, lines (take home pay) and : Put here the sum of your take-home pay plus any income you listed in. The state Supreme Court in City of Richland v. Wakefield has held that if your only income is Social Security disability benefits, a court cannot order you to use any of your benefits to pay your LFO s. Filing a Motion to Remit LFO s - Page

6 EN October. My Household Assets: In the blanks, put the amounts that apply to your current situation. After Total Household Assets, add up all your assets. If a blank does not apply to you, put a zero in it.. My Monthly Household Expenses: In the blanks, put the amounts that apply to your current situation. In the blank next to Sub-Total, add up all expenses.. My Other Monthly Household Expenses: Use this for any monthly household expenses not listed in number.. My Other Debts with Monthly Payments: List debts such as car payments, credit card payments, and loan payments. Total Household Expenses and Debts, Lines,, and : Add up your subtotals in,, and. Sign and date at the bottom where it says. D. Instructions for the Declaration of Defendant Fill out the caption. On the first line, put your name. 1. Read this.. Put the main reasons you cannot afford to pay your LFOs. Put any benefits you get (TANF, SSI, SFA, and/or food assistance). The state Supreme Court in City of Richland v. Wakefield has held that if your only income is Social Security disability benefits, a court cannot order you to use any of your benefits to pay your LFO s. If you get Social Security disability benefits, you should mention the Wakefield case in your motion.. Read this.. After My gross income is, put the amount from box of your Financial Statement. Look at the chart at this link: Check the first box in the next sentence if the chart at the link says you are below 1% of the federal poverty line. Otherwise, check the second box. Put the date and place you are signing this form. Then sign. Filing a Motion to Remit LFO s - Page

7 EN October E. Instructions for the Order Fill out the caption. At the end of the Order, sign on the bottom left signature line. Below that, print your name, address and phone number. LEAVE THE REST OF THE ORDER BLANK. This is your proposed Order only. The judge will fill out and sign this if s/he decides in your favor. Section : Next Steps You must A. I filled out the forms. Now what? 1. make copies and sets of copies. have a copy of the papers served on the prosecutor. file your papers with the court Copy your papers: Make three copies of every paper, including the proposed order and financial documents. Then make three full sets of copies of your papers: One set for you One for the prosecutor One for the judge for working papers Working papers are a courtesy set for the judge. Sometimes the originals do not make it into the court file in time for the judge to read them. Here is the full list of court papers: Motion to Remit/Waive Fines and Costs Financial Statement GR Any other attachment you are including (any attachments you mentioned in your Declaration) Declaration of Defendant Order (your proposed Order) Affidavit of Service - Do not make copies of this form until after you have had the papers served. See below. Filing a Motion to Remit LFO s - Page

8 EN October Serve the papers: You must (or someone else age or over) must deliver a set of copies to the prosecutor s office, in-person OR by mail. If you bring the papers to the office, ask the assistant or prosecutor to sign the Affidavit of Service. This is your proof they have gotten their copies. After serving the prosecutor, you fill out the Affidavit of Service with both the date you served the prosecutor the method in which you served him/her If you mailed the papers, you must put the name of the person who mailed it the date they mailed the motion to the prosecutor Save all receipts for proof that you served the prosecutor. After you have filled out the form, have the server sign and date it. Have the papers served before you go to the clerk s office to file. Filing your motion: Go to the Clerk s office. Explain that you are filing a motion on the criminal docket AND scheduling a hearing. Give the Clerk the set of originals for filing. Ask the Clerk to stamp your set of copies with the Filed stamp. Ask how to leave a working copy for the judge. Keep your copy of your forms for your own records. B. I served and filed the motion. Now what? Check your mail. The prosecutor might (does not have to) file and mail you an answer to your motion. If s/he does, read the response so you know ahead of time what the prosecutor s arguments are, if any. C. How do I represent myself at the hearing? You must be on time for your hearing day. On your hearing day, sit down in the courtroom. Wait until the judge calls your case or name. This publication provides general information concerning your rights and responsibilities. It is not intended as a substitute for specific legal advice. This information is current as of October. Northwest Justice Project (Permission for copying and distribution granted to the Alliance for Equal Justice and to individuals for non-commercial purposes only.) Filing a Motion to Remit LFO s - Page

9 IN THE COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF 1, Plaintiff, vs., Defendant. No. MOTION TO REMIT/WAIVE FINES AND COSTS OR IN THE ALTERNATIVE ESTABLISH A PAYMENT PLAN/COMMUNITY SERVICE I. INTRODUCTION AND RELIEF REQUESTED Defendant,, moves the Court for an order remitting Defendant s legal financial obligations (LFOs), pursuant to RCW.01.0() and RCW.01.0(), on the grounds that the imposition of said fines and costs constitutes a manifest hardship upon Defendant and/or his/her family and the Defendant is not in contumacious default. In addition, the Defendant moves the Court for an order waiving all other financial obligations, authorized by statute, due to indigency. MOTION TO WAIVE FINES AND COSTS AND/OR ESTABLISH A PAYMENT PLAN/COMMUNITY SERVICE - 1

10 II. EVIDENCE RELIED UPON This motion is based on the Defendant s Declaration attached hereto. III. LEGAL AUTHORITY 1 A. RCW.01.0() requires the court to waive costs cause upon a finding of manifest hardship. RCW.01.0() provides: A defendant who has been ordered to pay costs and who is not in contumacious default in the payment thereof may at any time petition the sentencing court for remission of the payment of costs or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant's immediate family, the court may remit all or part of the amount due in costs, or modify the method of payment under RCW Under RCW.01.0(), when a Defendant files a motion seeking remission, the appropriate inquiry is whether the legal financial obligations have resulted in a "manifest hardship" to Defendant or his/her family. When applying the manifest hardship test, courts must look to Defendant s current financial circumstances. State v. Blank, 1 Wn.d 0,, 0 P.d (). Blank held that RCW..0(), which is nearly identical to RCW.01.0(), requires the court to apply the manifest hardship test to Defendant s remission circumstances at the time s/he makes the motion to remit costs. As detailed in Fuller and its progeny, the obligation to repay the State accrues only to those who later acquire the means to do so without hardship. Fuller, U.S. at, State v. Barklind, Wn.d,, P.d (). In other words, "[t]hose who remain indigent or for whom repayment would 1 RCW.01.0 gives a court authority to allow payment plans and/or extend time to pay the fines. MOTION TO WAIVE FINES AND COSTS AND/OR ESTABLISH A PAYMENT PLAN/COMMUNITY SERVICE -

11 1 work 'manifest hardship' are forever exempt from any obligation to repay." Fuller, U.S. at. For guidance, courts should look to the comment in court rule GR regarding indigence. In State v. Blazina, our Supreme Court stated: This rule allows a person to obtain a waiver of filing fees and surcharges on the basis of indigent status, and the comment to the rule lists ways that a person may prove indigent status. GR. For example, under the rule, courts must find a person indigent if the person establishes that he or she receives assistance from a needs-based, means-tested assistance program, such as Social Security or food stamps. Id. (comment listing facts that prove indigent status). In addition, courts must find a person indigent if his or her household income falls below 1 percent of the federal poverty guideline. Id. Although the ways to establish indigent status remain nonexhaustive, see id., if someone does meet the GR standard for indigency, courts should seriously question that person's ability to pay LFOs. State v. Blazina, Wn. d,,, P.d 0, () (emphasis added). Under GR, a defendant who is above 1% of the federal poverty level but has recurring basic living expenses rendering him/her without the financial ability to pay LFOs meets GR s indigent standard. The court should also take into account other circumstances demonstrating a defendant s inability to pay. GR. Basic living costs" means the average monthly amount Defendant spends for reasonable payments toward living costs, such as shelter, food, utilities, health care, transportation, clothing, loan payments, support payments, and court-imposed obligations. RCW.1.0. B. The court must also waive discretionary fines pursuant to RCW.01.0(). RCW.01.0() provides: If it appears to the satisfaction of the court that the default in the payment of a fine or costs is not contempt, the court may enter an order allowing the defendant additional time for payment, reducing the amount thereof or of each installment or revoking the fine or costs or the unpaid portion thereof in whole or in part. MOTION TO WAIVE FINES AND COSTS AND/OR ESTABLISH A PAYMENT PLAN/COMMUNITY SERVICE -

12 1 (Emphasis added). The Defendant is not in contempt of court. The inability to pay due to indigency is not willful contempt. Bearden v. Georgia, 1 U.S. 0, S. Ct., L.Ed.d 1 (). Therefore, this Court must waive the discretionary fines imposed on this case or grant other relief as requested. IV. CONCLUSION AND PRAYER FOR RELIEF Defendant respectfully requests the court grant the motion to remit legal financial obligations by: WAIVING all or part of the court costs imposed. WAIVING all or part of the fines imposed. IF APPLICABLE, REMOVING THE FINES/COSTS FROM COLLECTION AND LOWERING Defendant s monthly payments. SUSPENDING monthly payment of Legal Financial Obligations until Defendant regains the ability to make said payments ALLOWING the Defendant to work off the costs/fines on community service. Other: Respectfully submitted this day of,. Defendant s Signature Defendant s Name: Address: MOTION TO WAIVE FINES AND COSTS AND/OR ESTABLISH A PAYMENT PLAN/COMMUNITY SERVICE -

13 IN THE COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF, Plaintiff, vs., Defendant. No. NOTICE OF ISSUE CLERK S ACTION REQUIRED 1 TO: ALL PARTIES, THEIR COUNSEL, AND THE CLERK OF THE COURT PLEASE NOTE the above cause for hearing at the following time: DATE: TIME: JUDGE: PLACE: MATTER: Motion to Remit Fines and Costs. DATED this day of,. Defendant, Pro Se NOTICE OF ISSUE- PAGE 1 OF 1 NAME: ADDRESS:

14 Case Name: Case Number: 1. My name is: Financial Statement (Attachment). [ ] I provide support to people who live with me: How many? Age(s):. My Monthly Income:. My Monthly Household Expenses: Employed [ ] Unemployed [ ] Rent/Mortgage: $ Employer s Name: Food/Household Supplies: $ Gross pay per month (salary or hourly pay): $ Utilities: $ Take home pay per month: $ Transportation: $. Other Sources of Income Per Month in my Household: Ordered Maintenance actually paid: Source: $ Ordered Child Support actually paid: Source: $ Clothing: $ Source: $ Child Care: $ Source: $ Education Expenses: $ Sub-Total: $ Insurance (car, health): $ [ ] I receive food stamps. Medical Expenses: $ Total Income, lines (take home pay) and : $ Sub-Total: $. My Household Assets:. My Other Monthly Household Expenses: Cash on hand: $ $ Checking Account Balance: $ $ Savings Account Balance: $ $ Auto #1 (Value less loan): $ $ Auto # (Value less loan): $ Sub-Total: $ Home (Value less mortgage): $. My Other Debts with Monthly Payments: Other: $ $ /mo Other: $ $ /mo Other: $ $ /mo Other: $ $ /mo Other: $ Sub-Total: $ Date: Total Household Assets: $ Total Household Expenses and Debts, lines,, and : Signature: $ $ $ Financial Statement (Attachment) - Page 1 of 1 WPF GR.000 (/) GR

15 IN THE COURT OF THE STATE OF WASHINGTON IN AND FOR THE OF, No. vs. Plaintiff, DECLARATION OF DEFENDANT 1, Defendant. I, declare: 1. I am the Defendant in this matter.. The fines and/or costs imposed on this case impose a manifest hardship on myself and/or my family for these reasons: DECLARATION OF DEFENDANT - 1 Name: Address:

16 1. I am indigent as defined in court rule GR. (See GR Form, attached.). My gross income is a month. ( ) I am at or below 1% of the federal poverty level. ( ) My income is above 1% of the federal poverty line BUT I have recurring basic living expenses that make me unable to pay my legal financial obligations.. I receive assistance from these public benefits programs. I certify under penalty of perjury under the laws of the state of Washington that the foregoing statement is true. Signed in (city), Washington on (date). Defendant s Signature Defendant s Name: DECLARATION OF DEFENDANT - Name: Address:

17 [PLACE HOLDER FOR ORDER] IN THE COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF 1 THE STATE OF WASHINGTON, Plaintiff, vs., Defendant. No. ORDER [PROPOSED] (Defendant s name) has presented a motion to remit legal financial obligations (LFOs). I. FINDINGS 1.1. Proper Jurisdiction and Venue The Court has proper jurisdiction and venue. 1.. Other ORDER - 1 Name: Address:

18 II. ORDER It is Ordered: The court grants Defendant s motion, as follows:.1. Legal Financial Obligations The court waives/ remits Defendant s legal financial obligations to the following amounts: Mandatory LFOs Restitution Victim s Penalty Assessment 1 Discretionary LFOs Attorney Costs Bench Warrant Fee Extradition Costs Jury Fee Witness Costs Court Costs Appellate Costs Drug Offense Costs Investigative fees Fines:.. Schedule of Payments: Legal financial obligations are due as follows: Defendant is not in willful default. ORDER - Name: Address:

19 Defendant s failure to pay is based on his/her indigency. The court costs imposed in this case impose a manifest hardship on the Defendant Defendant s family The court waives the discretionary legal financial obligations imposed in this case, pursuant to RCW.01.0() and RCW Other: 1 Dated this day of,. Presented by: Defendant s Signature, Pro-se Print name: Address: Phone: Judge ORDER - Name: Address:

20 IN THE COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF 1, No. Plaintiff, AFFIDAVIT OF SERVICE vs., Defendant. I,, declare under penalty of perjury, that I am not a party to the action, and am over years of age. On the day of,, I served a true copy of the attached motion to remit/waive fines and costs and corresponding documents by personal service to, Prosecuting Attorney at the (address). Dated this day of,. AFFIDAVIT OF SERVICE - 1 Signature Name: Name: Address: