Smith v. State
| Decision Date | 20 September 1995 |
| Docket Number | No. 79A04-9501-CR-23,79A04-9501-CR-23 |
| Citation | 655 N.E.2d 133 |
| Parties | Dwight E. SMITH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Dwight E. Smith appeals from the trial court's order requiring him to pay restitution as a condition of probation.
We affirm.
Whether the trial court erred in ordering Smith to make monthly restitution payments in the amount of $245.49.
On September 8, 1988, Smith pleaded guilty to one count of operating a vehicle with a blood alcohol content of .10 percent or more resulting in death, a class C felony, and to being an habitual substance offender. On November 1, 1988, Smith was sentenced to a total prison term of fourteen years, with three years suspended, and three years of probation. As a condition of probation, the court ordered Smith to pay restitution to the victim's widow.
On August 11, 1994, the State filed a motion for clarification of the trial court's restitution order. After the October 19, 1994, hearing on the motion, the trial court determined that Smith owed restitution in the amount of $8,332.86. It further found that Smith's monthly income after deductions was $981.99, that he expended $1,103.05 per month supporting his wife and two children, and that he had debt of $2,448.13. The trial court also found Smith's wife was capable of contributing $172.00 per month to the family living expenses after deducting daycare fees.
The trial court then ordered Smith's paycheck to be garnished in the amount of $245.49 per month through November 1996.
Ind.Code 35-38-2-2.3 provides in pertinent part:
(a) As a condition of probation, the court may require a person to do a combination of the following:
* * * * * *
(5) Make restitution or reparation to the victim of the crime for damage or injury that was sustained by the victim. When restitution or reparation is a condition of probation, the court shall fix the amount, which may not exceed an amount the person can or will be able to pay, and shall fix the manner of performance.
Smith argues the trial court erred in ordering him to pay $245.49 per month because, he claims, the evidence of his income and expenses, as noted above, indicates that amount is more than he is capable of paying. We disagree.
Although the trial court must determine the defendant's ability to pay the amount of restitution ordered, Polen v. State (1991), Ind.App., 578 N.E.2d 755, 758, trans. denied, the statute is not specific as to the form the court must follow in determining the defendant's financial status. Mitchell v. State (1990), Ind.App., 559 N.E.2d 313, 315, trans. denied. Thus, an order of restitution is a matter within the trial court's discretion and we will reverse only when an abuse of discretion occurs. Vanness v. State (1992), Ind.App., 605 N.E.2d 777, 783, trans. denied. As we noted in Mitchell:
[i]mposition of restitution is a form of punishment and although it may cause some hardship, the trial court has discretion to determine the extent of the hardship and whether the defendant can still subsist after the payments.
The trial court here properly held a hearing to determine the amount Smith could or would be able to pay, See Sales v. State (1984), Ind.App., 464 N.E.2d 1336, 1340, at which Smith testified he worked as a machinist and was taking a programming course at Ivy Tech. Additionally, Smith testified concerning his wife's work history and her plans...
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Smith v. State
...statute does not specify the extent to which the court must inquire to determine the defendant's financial status. Smith v. State, 655 N.E.2d 133, 134 (Ind.Ct.App.1995), trans. denied; see also Kays v. State, 963 N.E.2d 507, 509 (Ind.2012) (“The statute sets forth no particular procedure th......
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...in which a trial court must inquire into the defendant's ability to pay, the trial court must make such an inquiry. Smith v. State, 655 N.E.2d 133, 134 (Ind.Ct.App. 1995), trans. denied. The reason for requiring this inquiry is to ensure that a defendant is not imprisoned based on or her in......
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Sickels v. State, 20S03–1206–CR–308.
...Appellate Rule 58(A)(2).Standard of Review An order of restitution is a matter within the trial court's discretion. Smith v. State, 655 N.E.2d 133, 134 (Ind.Ct.App.1995), trans. denied. Accordingly, we reverse only upon a showing of abuse of discretion, which occurs when the trial court's d......
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...is a matter within the trial court's discretion, and we reverse only upon a showing of abuse of that discretion. Smith v. State, 655 N.E.2d 133, 134 (Ind.Ct.App. 1995),trans. denied. An abuse of discretion occurs when the trial court's determination is clearly against the logic and effect o......