Miss. R. Crim. P. 26.6

As amended through March 21, 2024

Rule 26.6 - Fine, Restitution, and/or Court Costs following Adjudication of Guilt

(a)Scope. Rule 26.6 applies only following a determination of guilt and, therefore has no applicability to pretrial diversion, non-adjudication, and the like.

(b)Method of Payment; Installments. When the defendant is sentenced to pay a fine, restitution, and/or court costs, the court may permit payment to be made within a specified period of time or in specified installments. Restitution shall be payable as promptly as possible, taking into account the defendant's indigency or economic ability to pay.

(c)Method of Payment; To Whom. Unless the court expressly directs otherwise:

(1) the payment of a fine, restitution, and/or court costs shall be made to the clerk of court; and

(2) monies received from the defendant shall be applied as follows:

(A) first, to pay any and all court costs (as designated by statute) assessed against the defendant;

(B) second, to pay any restitution the defendant has been ordered to make; and

(C) third, to pay any fines imposed against the defendant.

The clerk shall, as promptly as practicable, forward restitution payments to the victim.

(d)Court Action upon Failure of Defendant to Pay Fine, Restitution, and/or Court Costs. Upon the defendant's failure to pay a fine, restitution, and/or court costs, the court first must require the defendant to appear and show cause why said defendant should not be held in contempt of court. A summons requiring the defendant's appearance shall be personally served on the defendant and shall set forth the time and location of the hearing. If the defendant fails to appear, the court may issue a warrant for the defendant's arrest. During the hearing, the court shall inquire and cause an investigation to be made into the reasons for nonpayment, including whether nonpayment was willful or due to indigency or economic inability to pay. In that review:

(1) If it appears to the satisfaction of the court that nonpayment is not willful, the court shall enter an order allowing the defendant additional time for payment, reducing the amount thereof or of each installment, or revoking the fine or order of restitution or the unpaid portion thereof in whole or in part. However, the court shall not suspend or reduce an assessment imposed pursuant to Mississippi Code Section 99-19-73.

(2) If the court finds nonpayment is willful and finds the defendant in contempt of court, the court may direct that the defendant be incarcerated until the unpaid obligation is paid, subject, however, to section (e).

(e)Incarceration for Nonpayment of Fine, Restitution, and/or Court Costs.

(1) Incarceration shall not automatically follow the nonpayment of a fine, restitution, and/or court costs. Incarceration may be employed only after the court has conducted a hearing and examined the reasons for nonpayment and finds, on the record, that the defendant could have made payment but refused to do so. In justice and municipal court, such finding shall be included in the court's order.

(2) After consideration of the defendant's situation, means, and conduct with regard to the nonpayment, the court shall determine the period of any incarceration, subject to the limitations set by statute.

(3) If, at the time the fine, restitution and/or court costs was ordered, a sentence of incarceration was also imposed, the aggregate of the period of incarceration imposed pursuant to this Rule and the term of the sentence originally imposed may not exceed the maximum term of imprisonment authorized for the offense.

Miss. R. Crim. P. 26.6

Adopted eff. 7/1/2017; amended eff. 7/1/2018.

Comment

Rule 26.6 replaces former Rule 11.04 of the Uniform Rules of Circuit and County Court.

Section (b) mirrors practice under Mississippi Code Section 99-19-20(1) and recognizes that not everyone assessed a fine or restitution will be able to make full payment on the day of assessment. In addition to allowing payment in installments, the court may require the defendant to work on public property; the rate earned will be applied to the payment. See Miss. Code § 99-19-20(1), (2)(c).

Section (c) provides that, unless the court expressly orders otherwise, payments shall be made to the clerk and allocated as provided in section (c)(2). "The term 'fine' means, in addition to the pecuniary punishment, all fees, costs, assessments and other charges required by law to be imposed in such cases." Miss. Code Ann. § 99-19-3. Court costs include those designated by statute. See, e.g., Miss. Code Ann. §§ 25-7-13 (circuit court clerk fees), 25-7-25 (justice court fees), 25-7-27 (marshals and constables' fees). Fees owed to private collection and/or probation companies are not included in court costs. Section (c) also requires restitution payments be forwarded to the victim as promptly as practicable, as opposed to accumulating payments before remitting them to the victim.

Section (d) outlines the court's authority to inquire into and address non-payment or non-compliance, through contempt and other means, and provides reasonable alternatives to automatic incarceration. Section (d)(1) generally follows Mississippi Code Section 99-37-11, while section (d)(2) follows Mississippi Code Section 99-19-20(2). The court may address contempt by any other means provided by statute. See, e.g., Miss. Code § 99-19-65 (clerk's issuance of execution of any portion remaining unpaid). Nothing in Rule 26.6 precludes, in an appropriate case, proceeding pursuant to Rule 27.

Section (e) governs incarceration for non-payment and limits incarceration to instances in which the defendant could have satisfied payment but refused to do so. A defendant should not be imprisoned automatically when alternative methods are available. See Bearden v. Georgia, 461 U.S. 660, 672, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983); Tate v. Short, 401 U.S. 395, 91 S. Ct. 668, 28 L. Ed. 2d 130 (1971) (denial of equal protection to limit punishment to payment of a fine for those who are able to pay, but to convert the fine to imprisonment for those who are unable to pay). Further, the period of incarceration, if any, is subject to Mississippi Code Sections 99-19-20 and 99-37-9. Section (e)(3) follows Mississippi Code Section 99-19-20(2)(b) and Williams v. Illinois, 399 U.S. 235, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970), which forbid imprisonment of an indigent defendant for non-payment beyond the maximum sentence authorized for the offense.