Opinion Number

Dear Mr. Picard:

Your request for an Attorney General's opinion has been forwarded to me for research and reply. In particular, you asked the following question:

Can a judge order a defendant to serve additional time, or give a defendant credit for time served, in lieu of paying reasonable costs, to cover the expenses incurred by the marshal in effecting the arrest, in the execution for a bench warrant or a fugitive warrant?

La. C.Cr.P. article 884 addresses the first issue and provides:

[I]f a sentence imposed includes a fine or costs, the sentence shall provide that in default of payment thereof the defendant shall be imprisoned for a specified period not to exceed one year; provided that where the maximum prison sentence which may be imposed as a penalty for a misdemeanor is six months or less, the total period of imprisonment upon conviction of the offense, including imprisonment for default in payment of a fine or costs, shall not exceed six months for that offense.

The language of this article clearly provides that a judge shall incarcerate a defendant when payment of imposed court costs cannot be made. The second issue pertaining to credit for time served is addressed in La. C.Cr.P. articles 880 and 881 (A). La. C.Cr.P. article 880 provides:

[T]he court, when it imposes sentence, shall give a defendant credit toward service of his sentence for time spent in actual custody prior to the imposition of sentence.

Further, La. C.Cr.P. article 881 (A) provides:

[A]lthough the sentence imposed is legal in every respect, the court may amend or change the sentence, within the legal limits of its discretion, prior to the beginning of execution of the sentence.

Under article 880, the court has to give credit for time served. However, this credit would not necessarily apply to the costs incurred for which the defendant is responsible. Notwithstanding this provision, under article 881 (A) the judge would have discretion to include those costs within the credit for time served. Additionally, the costs referred to in your question are contemplated in La. C.Cr.P. article 887 (H), which provides in pertinent part:

[a] person convicted of a felony, a misdemeanor, or ordinance of any local government, may be assessed additional reasonable costs, to cover the costs expended by the sheriff, marshal, constable or municipal police in the execution of a bench warrant, or a fugitive warrant, or both affecting the arrest.

Hence, it is the opinion of this office that the above stated question can be answered in the affirmative.

I hope the foregoing has adequately answered your questions. If our office can be of further assistance, please do not hesitate to contact us. With kindest regards, I remain

Very truly yours,

RICHARD P. IEYOUB ATTORNEY GENERAL

BY: ________________________________ Donald A. Rowan, Jr. Assistant Attorney General