[ISBA RealEstate] Lien Status of Suspended Criminal Fine
<realestate@iabar.org>
Saturday June 09, 2018 16:40


Suspension of a criminal fine appears to inhibit all aspects of collection thereof.  See the old case State v. Mateer, below. 
(But Mateer arose under the old alcohol enforcement statutes, which were a separate breed of cat from run of the mill criminal court fines/judgments.)
The sentenced fine is not 'entered' in the records if it is suspended pending performance of probation conditions (I should think).
However, costs imposed even where primary sentence is suspended may constitute liens.
And "court debt" may be collectable even where sentence is 'suspended'.
So our current statutes appear to hold, when construed together. (See esp. sections 907.3(1), 907.9, and 909.6)

Absent a specific statute or court ruling saying that suspended fines do not constitute liens under section 624.23-- I conclude that we ought to object to such fines even where suspended. 
Court presumably possesses inherent power to enter in the criminal records a declaratory judgment stating that the fine is not to constitute a judgment for section 624.23 lien purposes.
If the criminal intends to sell his property then his attorney should request such an exemption order.
A criminal defendant does, by inference of the language in section 909.6, enjoy Baratta v. Polk County Health Services exemption from liens upon his homestead.
 
Criminal court context imposes meanings upon certain words that may substantially differ from how the real estate bar understands them.
"judgment" as a concept is not a declaration of financial liability but a pronouncement of guilt for statutory violation.
"sentence" refers to the range of penalties the criminal convict must pay in response to his "judgment" of guilt, which may include any or all of these monetary elements:
1) monetary fine payable to state
2) "surcharge" upon said fine (essentially, increasing the fine in the statute book)
3) monetary restitution payable to victim
4) judgment for court costs
5) attorney fee reimbursement payable to state
6) "civil penalties" (i.e., taxation by another name)
7) court reporter fees
8) jail charges
 & etc. etc. ad nauseum

602.8107 Collection of court debt.
1. Definition. As used in this section, unless the context otherwise requires:
a. "Court debt" means all fines, penalties, court costs, fees, forfeited bail, surcharges under chapter 911, victim restitution, court-appointed attorney fees or expenses of a public defender ordered pursuant to section 815.9, or fees charged pursuant to section 356.7 or 904.108.
…
2. Clerk of the district court collection. Court debt shall be owed and payable to the clerk of the district court.


901.5 Pronouncing judgment and sentence.
After receiving and examining all pertinent information, including the presentence investigation report and victim impact statements, if any, the court shall consider the following sentencing options. The court shall determine which of them is authorized by law for the offense, and of the authorized sentences.... At the time fixed by the court for pronouncement of judgment and sentence, the court shall act accordingly: 
1. If authorized by section 907.3, the court may defer judgment and sentence for an indefinite period in accordance with chapter 907.
…
3. The court may pronounce judgment and impose a fine or sentence the defendant to confinement, or both, and suspend the execution of the sentence or any part of it as provided in chapter 907.
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907.1 Definitions.
As used in this chapter, unless the context otherwise requires:
…
4. "Suspended sentence" means a sentencing option whereby the court pronounces judgment and imposes a sentence and then suspends execution of the sentence subject to the defendant's compliance with conditions set by the court as a requirement of the suspended sentence. Revocation of the suspended sentence results in the execution of sentence already pronounced.

907.3 Deferred judgment, deferred sentence, or suspended sentence.
Pursuant to section 901.5, the trial court may, upon a plea of guilty, a verdict of guilty...exercise any of the options contained in this section. …
1. a. With the consent of the defendant, the court may defer judgment and may place the defendant on probation upon conditions as it may require. A civil penalty shall be assessed as provided in section 907.14 upon the entry of a deferred judgment. …
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2. a. At the time of or after pronouncing judgment and with the consent of the defendant the court may defer the sentence and assign the defendant to the judicial district department of correctional services. …
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3. By record entry at the time of or after sentencing, the court may suspend the sentence and place the defendant on probation upon such terms and conditions as it may require....

907.9  Discharge from probation -- procedure -- expungement of deferred judgments.
1. At any time that the court determines that the purposes of probation have been fulfilled and fees imposed under section 905.14 and court debt collected pursuant to section 602.8107 have been paid, the court may order the discharge of a person from probation.
... 

909.6 Fine as judgment.
Whenever a court has imposed a fine on any defendant, the judgment in such case shall state the amount of the fine, and shall have the force and effect of a judgment against the defendant for the amount of the fine. The law relating to judgment liens [section 624.23! but see also sections 561.16 et seq.], executions [chapter 626] and other process available to creditors [see section 602.8107] shall be applicable to such judgments; provided, that no law exempting the personal property of the defendant from any lien or legal process shall be applicable to such judgments. ...


LaRue v. Burns, 268 N.W.2d 639 (Iowa 1978):
"II. Generally, judgment for costs against a criminal defendant creates a civil, not a criminal, liability. Van Buren County v. Bradford, 202 Iowa 440, 441, 210 N.W. 443, 444 (1926). An exception exists if a statute makes court costs part of the fine to be imposed as penalty for an offense. Id. Absent such statutory exception, a judgment for costs is to be enforced by execution. s 626.1; see State v. Rogers, 251 N.W.2d 239, 242 (Iowa 1977)."
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"Section 626.1 (“Judgments or orders requiring the payment of money * * * are to be enforced by execution.”) provides the applicable procedure for enforcement of this cost judgment. In this case, the record evidences no attempt to comply with this procedure prior to invocation of contempt power.
"In light of the circumstances of this case, the availability of the s 626.1 remedy, and policies underlying the contempt power, we hold there was no justification for imposition of a jail sentence. The cost judgment should have been enforced by execution."


State v. Mateer, 105 Iowa 66, 74 N.W. 912 (1898):
"On the 10th day of October, 1891, Shorty Hawkins was charged by indictment with the crime of nuisance committed by keeping for sale and selling on the premises in controversy intoxicating liquors in violation of law. In April, 1892, he was tried, and found guilty of the offense charged, and adjudged to pay a fine of $700 and the costs of prosecution. The judgment also provided that he stand committed to the jail of Mahaska county until the fine and costs should be paid. Hawkins was imprisoned for a time, but was released under an order of the governor of the state, which, in terms, suspended the further execution of the judgment. ... Hawkins did not own the premises in controversy, and this action was commenced on the 21st day of May, 1892, to subject the premises to the payment of the judgment … None of the defendants named, excepting Mateer, were served with notice of the action, and he alone appeared to it. The district court found that he was the owner of the premises, and that he purchased them while this action was pending, and charged with notice of the rights of the plaintiff. A decree was accordingly rendered subjecting the premises to the payment of the judgment against Hawkins.
...
"4. We are next required to determine the effect of the order of the governor to suspend the execution of the judgment. The order contains the following: “I, Horace Boies, governor of the state of Iowa, in the name and by the authority of the people thereof, do hereby suspend the further execution of the judgment of the district court of Mahaska county [describing the judgment in controversy]. ...
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"The governor of this state has power “to grant reprieves, commutations, and pardons, after conviction,” and to “remit fines and forfeitures,” under such regulations as may be prescribed by law. Const. art. 4, § 16. Section 4712 of the Code of 1873 provides that “the governor shall have power to remit fines and forfeitures upon such conditions and with such restrictions and limitations as he may think proper.” That the governor had the power, under these provisions, to remit the fine in question, is not controverted, but there is nothing in the language of the order which we have quoted to show that the governor intended to remit the fine. In that respect it differs from the order considered in Harbin v. State, 78 Iowa, 263, 43 N. W. 210. ...
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"The order was comprehensive in its terms, and included the entire judgment, and we are not authorized to so construe the language used as to limit it to imprisonment. That it was within the power of the governor to grant a conditional suspension of the judgment is settled by the adjudications of this court. Arthur v. Craig, 48 Iowa, 264; Harbin v. State, 78 Iowa, 263, 43 N. W. 210; State v. Beebee, 87 Iowa, 636, 54 N. W. 479. We conclude, therefore, that, as a revocation of the governor's order is not shown, the bringing of this action, so far as it related to the fine imposed on Hawkins, is at least premature, and that the right to maintain it as to such fine has not, for that reason, been established. But this is not true with respect to the costs. The governor had no power to remit them, nor to suspend their collection. State v. Beebee, supra; Estep v. Lacy, 35 Iowa, 419. ...
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" A decree will be rendered in favor of the state for the costs remaining after deducting the attorney's fee, and establishing a lien therefor on the premises in controversy. The decree of the district court is modified and affirmed."

State v. Blagg, 752 N.W.2d 31 (Iowa App. 2008)(Table) holds that courts have power to suspend civil penalties just as they possess power to suspend fines.
But the court does not discuss the effect of suspensions as to liens for said fines/penalties.

3 Patton & Palomar on Land Titles 3d S582, p.173 (2003):
S582.  Fines and Judicial Bonds.
In most states, fines in criminal cases, when entered upon a judgment docket or recorded in the local land records office, become liens with the same effect as judgments in civil actions.

24 C.J.S. Criminal Law S1550, p.140 (1989):
S1550. Nature and Purpose
Suspension of sentence is a suspension of active proceedings in a criminal prosecution. It is not a final judgment...

NOT a subject with a clear answer! Sorry that I can't offer a more-definitive answer, Mr. Daggett.

David Hanson
Hofmeyer & Hanson PC
Fayette, Iowa


----- Original Message -----
From: "Douglas Daggett" <realestate@iabar.org>
To: "realestate" <realestate@iabar.org>
Sent: Saturday, June 9, 2018 3:19:20 PM
Subject: [ISBA RealEstate]  Lien Status of Suspended Criminal Fine

Listmates, 
An abstract shows the judgment entered against the current property owner in a felony criminal case (drug charge) for a fine of $5,000 plus surcharge. The sentence sent the defendant/property owner to prison for twenty-five years. Due to incarceration, the judge suspended payment of the fine and surcharge. 
What is the lien status? Does the lien attach to his real estate? Does the fact that the fine and surcharge are suspended mean that the judgment does not attach since it is not currently payable by the defendant/property owner? 
Doug Daggett