Olivia Covington for www.theindianalawyer.com
A Marion County man found to be indigent is entitled to a reimbursement for the $740 in fees imposed on him by the probation department after the Indiana Court of Appeals found the Marion Superior Court abused its discretion by letting the probation department impose fees when it had not authorized such fees.
In Adam Whitaker v. State of Indiana, 49A02-1706-CR-1162, Adam Whitaker was found guilty of domestic battery and invasion of privacy, both as Class A misdemeanors. The Marion Superior Court found Whitaker indigent for fines and costs and wrote in its sentencing order that it was assessing $0 in fees against him.
However, a bond release memo from the probation department said Whitaker owed $740 for a bond paid by the Marion County Clerk’s Office. The request for the $740 to be transferred to the clerk’s office was approved, prompting Whitaker’s instant appeal.
On appeal, Whitaker argued it was error for the probation department to assess fees against him when the trial court did not impose fees as part of his probation order. Indiana Court of Appeals Judge Elaine Brown agreed, drawing on precedent from De La Cruz v. State, 80 N.E. 3d 210 (Ind. Ct. App. 2017), to support the appellate panel’s reversal of the imposition of fees on Whitaker.
“We stated that, ‘(a)lthough De La Cruz’ 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-reporting, to asses (De La Cruz’s) ability to pay,’ the trial court did not impose probation fees,’†Brown wrote of the De La Cruz holding. “We held that, ‘…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,’ and that ‘(s)uch 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.’â€
Similarly, because the trial court did not order probation fees, it abused its discretion when it authorized the probation department to impose the $740. Thus, the fees were reversed, and the case was remanded to reimbursement Whitaker.
