CHAPTER 163

(SB 107)

Failure to pay fines, costs or restitution, computation revised.

         ENTITLED, An Act to  revise certain provisions relating to the computation of time to be served for the failure to pay certain fines, costs, or restitution.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:

     Section  1.  That § 23A-27-25.5 be amended to read as follows:

     23A-27-25.5.   No defendant may be imprisoned or jailed for failure to pay a fine, costs, and or restitution or have his or her suspended prison or jail sentence revoked without a prior hearing. At the hearing, the defendant shall have has the burden of proof to establish to the reasonable satisfaction of the magistrate or circuit judge that he the defendant did not willfully fail to pay the fine, costs, or restitution or that he the defendant did make a bona fide effort to pay the fine, costs, or restitution.

     Failure by the defendant to make such a showing shall be is grounds for being imprisoned or jailed. If the sentence provided for payment of fine, costs, or restitution only, the term of jail or imprisonment shall may be no longer than the number of days equal to the total amount of the fine, costs, and restitution imposed divided by twenty forty . For purposes of making this computation, any fraction of less than one day shall be dropped from the term of imprisonment. In no event may such imprisonment for failure to pay the fine, costs, and restitution together with all other time served or to be served exceed the maximum allowed by statute.

     If the defendant establishes nonpayment was not willful, or that he the defendant did make a bona fide effort to pay, he the defendant may not be imprisoned or jailed for nonpayment. The magistrate or circuit judge shall consider other alternatives which take into account the state's interest in punishment and deterrence.

     The court shall make findings in its decision.

     Signed February 25, 2004.

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