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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe Marion County probation department must reimburse an offender’s probation fees after the Indiana Court of Appeals held the trial court erred by allowing the probation department, and not the court, to impose such fees.
In Jose Arcia De La Cruz v. State of Indiana, 49A05-1610-CR-2417, Jose De La Cruz was charged with Class A misdemeanors operating a vehicle while intoxicated endangering a person and operating a vehicle with an ACE of 0.15 or more. De La Cruz was found guilty of only the lesser-included offense of Class C felony operating a vehicle while intoxicated and was sentence to 60 days in jail, with 56 days suspended, and an additional 180 days on non-reporting probation.
During sentencing, the Marion Superior Court found De La Cruz to be indigent and, thus, chose not to impose court costs, fees or fines. Additionally, the court ordered a sliding scale for probation fees, but did not impose any.
However, an entry on the last page of the chronological case summary in De La Cruz’s case shows probation and administrative user fees totaling $220 and that he had paid that amount. De La Cruz appealed, arguing the trial court abuse its discretion by allowing the probation department to assess those fees.
The state, however, argued the appeal was moot because he has already paid his probation fees and completed probation. But the Indiana Court of Appeals disagreed, with Judge Edward Najam writing Friday there is a remedy available to De La Cruz – reimbursement of the fees – which makes the appeal not moot.
The appellate panel imposed that remedy, reversing the imposition of the fees and ordering full reimbursement to De La Cruz. Specifically, Najam referenced Indiana Code 35-38-2-1(b), which holds that for persons convicted of a misdemeanor, “the court may order the person to pay the user’s fee… .”
In the recent case of Burnett v. State, 49A04-1610-CR-2402, –N.E.3d –, 2017 WL 1399845 at 4 (Ind. Ct. App. April 19, 2017), the appellate court held that statute, and other similar statutes, “give ‘the trial court, not the probation department, … the discretion to impose probation fees.’”
“Although De La Cruz’s sentencing and probation orders referred to a ‘sliding scale for probation fees’ and the trial court ‘order(ed) probation, if there are any fees associated with non-report, to assess (De La Cruz’s) ability to pay,’ the trial court did not impose probation fees,” Najam wrote. “Rather, as in Burnett…, the probation order included a monetary obligations’ section with an ‘ordered amount’ column in which all the rows for specific fees were either blacked out or blank. Such a probation order, along with the absence of a clear statement imposing probation fees, shows the trial court’s intent not to impose such fees.”
“The trial court did not order probation fees, and it abuse its discretion when it authorized the probation department to do so,” Najam said.
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