Liability of defendant for expenditures by state board; judgment; determination of amount and method of payment; liability of others for expenditures

22-4513. Liability of defendant for expenditures by state board; judgment; determination of amount and method of payment; liability of others for expenditures. (a) If the defendant is convicted, all expenditures made by the state board of indigents' defense services to provide counsel and other defense services to such defendant or the amount allowed by the board of indigents' defense reimbursement tables as provided in K.S.A. 22-4522, and amendments thereto, whichever is less, shall be taxed against the defendant and shall be enforced as judgments for payment of money in civil cases. (b) In determining the amount and method of payment of such sum, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose. A defendant who has been required to pay such sum and who is not willfully in default in the payment thereof may at any time petition the court which sentenced the defendant to waive payment of such sum 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 waive payment of all or part of the amount due or modify the method of payment. (c) Whenever any judgment has been entered pursuant to subsection (a) of this section, a sum equal to such judgment may be recovered by the state of Kansas for the benefit of the state general fund from any persons to whom the indigent defendant shall have transferred any of the defendant's property without adequate monetary consideration after the commission of the alleged crime, to the extent of the value of such transfer, and such persons are hereby made liable to reimburse the state of Kansas with interest at 6% per annum. Any action to recover judgment for such expenditures shall be prosecuted by the attorney general, who may require the assistance of the county attorney of the county in which the action is to be filed, and such action shall be governed by the provisions of the code of civil procedure relating to actions for the recovery of money. No action shall be brought against any person under the provisions of this section to recover for sums expended on behalf of an indigent defendant, unless such action shall have been filed within two years after the date of the expenditure by the state board of indigents' defense services. History: L. 1969, ch. 291, § 13; L. 1976, ch. 169, § 3; L. 1981, ch. 157, § 2; L. 1982, ch. 142, § 24; L. 1997, ch. 181, § 23; July 1. Law Review and Bar Journal References: Reimbursement of costs by indigent defendants for court-appointed counsel, William R. Vincent, 10 W.L.J. 113, 115, 119 (1970). Analyzed in terms of legislative intent and alternate approach suggested in note on requiring indigent defendants to reimburse the state for expenses of a court appointed counsel, 20 K.L.R. 344 (1971). "Recoupment of Defense Costs from Indigents," Michael D. Hood, 14 W.L.J. 146, 147 (1975). "Kansas Recoupment: A Recurring Constitutional Concern," Roger N. Walter, 19 W.L.J. 38, 46, 47, 48 (1979). Attorney General's Opinions: Aid to indigent defendants; recoupment by the state of funds dispersed. 81-174. Attorney fees assessed in child in need of care actions are not civil judgments and cannot be collected as such. 1999-61. City may charter out and assess reasonable costs against defendant who requests trial and is convicted. 2002-21. No requirement to establish mandatory provisions for reimbursement of expert, investigative and other defense services. 2004-33. CASE ANNOTATIONS 1. Section held unconstitutional. Strange v. James, 323 F. Supp. 1230, 1231, 1232, 1233, 1234. 2. Section violates equal protection clause of U.S. Constitution; deprival of exemptions available to other civil judgment debtors. James v. Strange, 407 U.S. 128, 92 S. Ct. 2027, 2029, 2035, 32 L.Ed. 2d 600. 3. Section provides unconstitutional burden on right to counsel. Strange v. James, 323 F. Supp. 1230, 1231, 1232, 1233, 1234. On appeal, section found constitutionally infirm on other grounds. James v. Strange, 407 U.S. 128, 92 S. Ct. 2027, 32 L.Ed.2d 600. 4. Section held constitutional; no notice, hearing or due process violations. State v. Keener, 224 Kan. 100, 103, 577 P.2d 1182. 5. Section requiring repayment from indigent defendant for whom attorney provided service held unconstitutional; makes no provision for individual circumstances. Simmons v. James, 467 F. Supp. 1068, 1080. 6. Fact that counsel is limited to certain fee is not sufficient to show ineffectiveness. State v. Allen, 5 Kan. App. 2d 31, 611 P.2d 605. 7. When court must consider defendant's financial ability to reimburse state for defense services under K.S.A. 21-4610(4)(c) determined. State v. Crawford, 248 Kan. 42, 47, 804 P.2d 1385 (1991). 8. Court required to tax against defendant costs and attorney fees; court required to waive all or part of costs taxed as facts warrant only upon petition of defendant. State v. Robinson, 33 Kan. App. 2d 773, 109 P.3d 185 (2005). 9. Defendant's ability to pay should be considered in determining reimbursement of attorney fees. State v. Voyles, 34 Kan. App. 2d 110, 116 P.3d 720 (2005). 10. Issue of payment of fees for indigent defendant legal services not considered on appeal if not raised at trial. State v. Turner, 34 Kan. App. 2d 131, 115 P.3d 776 (2005). 11. Court required to consider defendant's financial resources before assessing attorney fees. State v. Hemphill, 34 Kan. App. 2d 139, 115 P.3d 782 (2005). 12. Court making initial assessment must explicitly consider financial resources of defendant and burden imposed. State v. Robinson, 281 Kan. 538, 541, 546, 132 P.3d 934 (2006). 13. Court must tax specific amount claimed by BIDS to determine amount and method defendant able to pay. State v. Stevens, 36 Kan. App. 2d 323, 344, 138 P.3d 1262 (2006). 14. Court must consider on the record, at the time of assessment, the defendant's financial resources and burden that payment of fees will impose. State v. Smith, 36 Kan. App. 2d 723, 729, 143 P.3d 695 (2006). 15. Board of Indigent's Defense Services assessment set aside and remanded for failure to make on-the-recond-findings. State v. Davis, 283 Kan. 569, 586, 158 P.3d 317 (2007). 16. Court's failure to explicitly consider defendant's financial resources and burden of fees is reversible error. State v. Voyles, 284 Kan. 239, 259, 260, 160 P.3d 794 (2007). 17. BIDS fees court must consider on the record the financial resources of defendant and burden fees will impose. State v. Davis, 284 Kan. 728, 740, 163 P.3d 1224 (2007). 18. Section requires court to tax costs of BIDS reimbursement then balance defendant's ability to repay. State v. Stevens, 285 Kan. 307, 327, 172 P.3d 570 (2007). 19. Application fee in K.S.A. 22-4529 not a Board of Indigent's Defense Services expenditure within meaning of statute. State v. Hawkins, 37 Kan. App. 2d 195, 199, 152 P.3d 85 (2007). 20. Trial court to consider on the record defendant's financial resources and burden payment of fees would impose. State v. Poulton, 37 Kan. App. 2d 299, 311, 152 P.3d 678 (2007). 21. Court must consider on the record defendant's financial resources and burden of paying fees. State v. Storey, 37 Kan. App. 2d 555, 561, 154 P.3d 1148 (2007). 22. BIDS attorney fees reimbursement order requires court to consider defendant's financial ability. State v. Cole, 37 Kan. App. 2d 633, 639, 155 P.3d 739 (2007). 23. Court must consider on record nature of defendant's financial burden and burden of paying reimbursement of BIDS fees. State v. Birth, 37 Kan. App. 2d 753, 777, 158 P.3d 345 (2007). 24. Court must consider defendant's financial circumstances when assessing BIDS fees. State v. Geraghty, 38 Kan. App. 2d 114, 116, 128, 163 P.3d 350 (2007). 25. Applied; court failed to inquire into defendant's financial ability to pay BIDS fees, remanded. State v. Kraft, 38 Kan. App. 2d 215, 223, 163 P.3d 361 (2007). 26. Challenge to BIDS fees dismissed for lack of jurisdiction. State v. Inkelaar, 38 Kan. App. 2d 312, 313, 164 P.3d 844 (2007). 27. Reimbursement of BIDS fees order vacated, but application fee order upheld. State v. Martinez, 38 Kan. App. 2d 324, 337, 165 P.3d 1050 (2007). 28. BID application fee order reversed; BID attorney fees order vacated and remanded. State v. Whillock, 38 Kan. App. 2d 431, 168 P.3d 56 (2007). 29. Court failed to consider on-record financial resources of defendant; assessment of attorney fees vacated. State v. Dukes, 38 Kan. App. 2d 958, 965, 174 P.3d 914 (2008). 30. Court erred in ordering defendant to fully reimburse BIDS when court found he would not have financial ability to pay. State v. Drayton, 285 Kan. 689, 714, 175 P.3d 861 (2008). 31. Section requires court to consider the ability of the defendant to pay BIDS attorney fees. State v. Holt, 285 Kan. 760, 776, 777, 175 P.3d 239 (2008). 32. Affirmed court of appeals vacating order imposing the BIDS attorney fee reimbursement for failure to consider K.S.A. 22-4513 statutory factors. State v. Hawkins, 285 Kan. 842, 849, 850, 851, 854, 176 P.3d 174 (2008). 33. BIDS attorney fee order vacated for failure to make explicit findings on the record. State v. Scaife, 286 Kan. 614, 625, 626, 186 P.3d 755 (2008). 34. Cited; case remanded for failure to make findings required by K.S.A. 22-4513. State v. Johnson, 286 Kan. 824, 826, 852, 190 P.3d 207 (2008). 35. Cited; imposition of BIDS attorney fees must be appealed within 10 days of judgment otherwise no appellate jurisdiction. State v. Ehrlich, 286 Kan. 923, 924, 189 P.3d 491 (2008). 36. Assessment of BIDS application fee and BIDS attorney fees remanded to district court to consider whether fees cause manifest hardship. State v. Wenzel, 39 Kan. App. 2d 194, 200, 202, 177 P.3d 994 (2008). 37. BIDS attorney fees reversed; court failed to inquire into financial ability to pay. State v. Barney, 39 Kan. App. 2d 540, 551, 185 P.3d 277 (2008). 38. Court failed to consider defendant's financial resources; remanded to comply with section. State v. Bale, 39 Kan. App. 2d 655, 665, 182 P.3d 1280 (2008). 39. Plea agreement provided for payment of appointed counsel fees; rights regarding financial resources waived by defendant. State v. Perry, 39 Kan. App. 2d 700, 701, 183 P.3d 12 (2008). 40. Cited; case remanded for failure of court to make necessary financial inquiry required by statute. State v. May, 39 Kan. App. 2d 990, 997, 186 P.3d 847 (2008). 41. Cited; K.S.A. 22-4513 is a recoupment statute, not a penalty statute, court may impose fees without pronouncing at sentencing. State v. Shadden, 40 Kan. App. 2d 1103, 1120 to 1122, 199 P.3d 167 (2009). 42. Court discusses differing burdens regarding orders of restitution under K.S.A. 21-4603d and BIDS attorney fees under K.S.A. 22-4513. State v. King, 288 Kan. 333, 204 P.3d 585 (2009). 43. BIDS application fee distinguished from BIDS attorney fees. State v. Riojas, 288 Kan. 379, 204 P.3d 578 (2009). 44. Sentencing court assessing BIDS attorney fees must consider on the record the defendant's financial resources. State v. Phillips, 289 Kan. 28, 210 P.3d 93 (2009). 45. BIDS application fee procedures protect a defendant's constitutional right to counsel. State v. Casady, 289 Kan. 150, 210 P.3d 113 (2009). 46. Court failed to follow procedure for assessment of BIDS attorney fees; remanded. State v. Harvey, 41 Kan. App. 2d 104, 202 P.3d 21 (2009). 47. Court failed to take into account defendant's financial resources and burden of BIDS attorney fees; remanded. State v. Penn, 41 Kan. App. 2d 251, 201 P.3d 752 (2009). 48. BIDS attorney fees judgment vacated and remanded with instruction to comply with K.S.A. 22-4513(b). State v. Dean, 42 Kan. App. 2d 32, 208 P.3d 343 (2009). 49. Case remanded for trial court's failure to comply with K.S.A. 22-4513. State v. Quinones, 42 Kan. App. 2d 48, 208 P.3d 335 (2009). 50. District court erred in ordering defendant to pay BIDS fees without first inquiring about his financial resources on the record. State v. Knight, 42 Kan. App. 2d 893, 218 P.3d 1177 (2009). 51. Imposition of BIDS attorney fees reversed for failure to make findings of statutory factors on the record. State v. Richardson, 290 Kan. 176, 224 P.3d 553 (2010). 52. Defendant may waive statutory requirements in ordering BIDS attorney fees payment. State v. Copes, 290 Kan. 209, 224 P.3d 571 (2010). 53. District court's assessment of BIDS attorney fees in amount to be determined not in compliance with statutory requirements. State v. Edgar, 45 Kan. App. 2d 340, 246 P.3d 1013 (2011). 54. District court failed to make requisite findings to impose BIDS attorney fees against defendant. State v. Cummings, 45 Kan. App. 2d 510, 247 P.3d 220 (2011). 55. A district court judge must explicitly consider on the record a criminal defendant's financial resources before assessing a board of indigents' defense services fee. State v. Ayers, 309 Kan. 162, 432 P.3d 663 (2019). 56. A sentencing court assessing fees to reimburse the board of indigents' defense services must consider, on the record at the time of assessment, the defendant's financial resources and the burden that paying the fees will impose. State v. Garcia-Garcia, 309 Kan. 801, 441 P.3d 52 (2019). 57. District court erred by ordering defendant to pay $5,000 in board of indigents defense attorney fees without expressly considering the nature of the burden that payment would impose on the defendant. State v. Anderson, 318 Kan. 425, 444, 543 P.3d 1120 (2024). 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