Unable to pay fines

P1979
No. 14786
THE STATE OF MONTANA, v.
JAMES LENIHAN,
1. Is the issue raised by defendant properly reviewable
on appeal?
2. Did the District Court err in ordering an indigent
defendant to reimburse the county for attorney fees as part
of a condition of deferred imposition of sentence
"No convicted person may be held in contempt for
failure to repay if he shows that his default was not attributable
to an intentional refusal to obey the order of the
court or to a failure on his part to make a good faith
effort to make the payment." Fuller v. Oregon, 40 L.Ed.2d at
650.
This Court is aware of the financial burden placed on
the counties and the State by the criminal justice system.
We do not disagree with the proposition of reimbursement to
the State. On the contrary, we applaud the trial judge for
his efforts. However, we feel that recoupment provisions
should be made to operate with considerations given to
ability to repay, and in the event of default, the penalty
should be a form of civil liability rather than possible
criminal sanctions. Recoupment is not a magic word, and it
may be possible and desirable to perfect a system outside
that kind of legislation.
The judgment of the deferred imposition of sentence is
remanded to the District Court with instructions to vacate
the repayment of attorney fees condition complained of and
enter its order accordingly.