ILNews

Restitution continues beyond probation period

Jennifer Nelson
January 1, 2008
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The Indiana Supreme Court affirmed today that trial courts must inquire about a defendant's ability to pay when they order restitution as a condition of probation or a suspended sentence and a restitution obligation continues beyond the end of a probationary period.

However, in Jeffrey Pearson v. State of Indiana, No. 45S03-0712-CR-574, the high court affirmed the trial court's order for Pearson to pay at least $150 a month in restitution as a condition of his probation even though the trial court didn't inquire about his ability to pay.

On appeal, Pearson only raised the issue of whether the trial court erred in ordering him to pay more than $50,000 in restitution during his one-year probationary period without determining if he could pay that amount.

Pearson was a police officer in the East Chicago Police Department and served as treasurer of the Fraternal Order of Police Lodge #59. When two widows complained to the lodge they hadn't received death benefits following their husbands' deaths, an internal investigation showed that funds were missing.

Pearson agreed to plead guilty to a count of conversion to have a felony theft charge dismissed. He was sentenced to one year in the Lake County Jail, suspended and served on probation, and ordered to make restitution to the victims. The state introduced evidence to show Pearson should pay more than $50,000 in restitution; Pearson argued he should only have to pay $300, but introduced no evidence to support his amount.

The trial court accepted the terms of the plea agreement and without making a finding to his ability to pay, sentenced Pearson to pay $52,685.97 in restitution in increments of at least $150 a month.

The Court of Appeals reversed the trial court order because it failed to determine his ability to pay and remanded the cause to the trial court.

In the unanimous opinion authored by Justice Robert Rucker, the high court does hold that a trial court is required to ask about a defendant's ability to pay when it orders restitution as a condition of probation or of a suspended sentence. The reason behind this is to prevent indigent defendants from being imprisoned for violating probation as a result of failing to pay the restitution, wrote Justice Rucker.

Pearson's argument in appeal is an assumption his obligation to pay back the restitution ends when his probationary period stops, but Indiana statute and previous rulings show that the expiration of a probationary period doesn't terminate the defendant's obligation to make restitution to a crime victim, he wrote, citing Indiana Code Section 35-50-5-3(f) and Savage v. State, 655 N.E.2d 1223, 1225 (Ind. 1995).

The Supreme Court reinstated the trial court's order, finding that because Pearson didn't challenge the amount of restitution or his ability to pay the $150 a month, there isn't a need to remand to the trial court.
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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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