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Fines – Ability to Pay – Determination

State v. Bruce J. Kuechler, 2003 WI App 245
For Kuechler: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding:

¶13. Fourth, Kuechler contends that the trial court imposed the fine without first ascertaining his ability to pay. We agree. Because Kuechler timely raised the issue of ability to pay in his postconviction motion, the trial court had a duty to make a determination on that issue. See State v. Iglesias, 185 Wis. 2d 117, 129, 517 N.W.2d 175 (1994).¶14. The evidence of inability to pay on the part of Kuechler in the court below is unsatisfactory. After Kuechler raised the issue of ability to pay in his postconviction motion, it does not appear in the record that there was a hearing at which Kuechler’s ability to pay the fine was determined. “Such a hearing is necessary to avoid an unconstitutional application of the statutes.” State ex rel. Pedersen v. Blessinger, 56 Wis. 2d 286, 298, 201 N.W.2d 778 (1972). … This portion of the case should be remanded to determine whether Kuechler is able to pay the fine.

¶16. Finally, in the future, we strongly advise the courts below to abide by the supreme court’s counsel in Pedersen: “Much time could be saved if trial courts would follow the practice of ascertaining the defendant’s ability to pay a fine at the time of sentencing.”Pedersen, 56 Wis. 2d at 296.

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