Request By:
Mr. Elwood Forsythe
Harrison County Jailer
203 West Pike Street
Cynthiana, Kentucky 41031
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
A man is convicted of disorderly conduct and fined $50 plus costs for a total of $64.50. You ask how many days must he serve in jail if he does not pay the fine and costs. The old law providing for serving out a fine on a per day monetary rate was repealed.
Under KRS 534.060(2), where the defendant fails to pay a fine, the court can require him to show cause why he should not be imprisoned for nonpayment. Following the show cause order, unless defendant shows his default was not attributable to an intentional refusal to obey the court's sentence and not attributable to a failure on his part to make a good faith effort to get the money to pay the fine, the court may order the defendant imprisoned for a term not to exceed one third (1/3) of the maximum authorized term of imprisonment for the offense committed, since the fine was imposed for conviction of a misdemeanor. See KRS 525.060. Disorderly conduct is a Class B misdemeanor, for which a maximum of ninety (90) days imprisonment is authorized. KRS 532.090(2).
The answer to your first question is that he can be imprisoned for a term not to exceed 30 days [1/3 of 90]. Of course indigents cannot be put in jail just for the purpose of serving out a fine. The states are prohibited from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine. See Spurlock v. Noe, Ky., 467 S.W.2d 320 (1971) 321; and Tate v. Short, 401 U.S. 395, 91 S. Ct. 668, 28 L. Ed. 2d 130 (1971).
Your second question reads:
"If a person is picked up and charged with disorderly conduct and remains in jail for five days, and on the fifth day, appears in Court and is found guilty and fined $50.00 plus costs ($64.50), how many days must he serve in jail if he fails to pay the fine? "
The answer is the same as in question no. 1, except that the defendant should be given credit for the five days he served in jail. KRS 532.120(3). In all cases the court order should show the precise term (days) of the sentence of imprisonment.