Failure to conduct indigency hearing results in remand

March 6, 2015

A trial court that imposed a $340 probation fee on a defendant sentenced on misdemeanor convictions must be revisited because the court failed to conduct a hearing on the defendant’s ability to pay.

Demand Johnson was ordered to pay the fee after he was sentenced to a year with all but four days suspended to probation for his convictions of Class A misdemeanor carrying a handgun without a license and Class C misdemeanor possession of alcohol as a minor.

Johnson only served five months on probation before it was revoked when he was arrested on a separate offense.

“We find no requirement that a trial court should conduct an indigency hearing at the time probation fees are ordered. Nevertheless, the trial court has a duty to conduct an indigency hearing before or upon the completion of a defendant’s sentence,” Judge John Baker wrote for the panel in Demand Johnson v. State of Indiana, 49A02-1406-CR-437.

“Additionally, probation fees should reflect the time a defendant actually served on probation. Therefore, we remand to the trial court to conduct an indigency hearing upon the completion of Johnson’s sentence and to reassess probation fees relative to the time that Johnson served on probation.”



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