Trial court abused discretion in ordering indigent juvenile to pay restitution

January 17, 2017

The Marion Superior Court erred when it ordered a juvenile delinquent to pay restitution to his theft victim after the court noted in its dispositional order that the juvenile offender was unable to pay, the Indiana Court of Appeals found Tuesday.

In February 2016, the state filed a delinquency petition against S.S. alleging that his act of taking a cellphone from M.H. would constitute Level 3 felony burglary and Level 3 felony robbery resulting in bodily injury if committed by an adult. S.S. agreed to adjudication for an act that would be considered Class A misdemeanor theft and, as part of the admission agreement, agreed to make “(r)estitution for the LG4 Cell Phone, documentation and valuation to be determined (sic) disposition or restitution hearing.”

At a subsequent hearing, the juvenile court attempted to set the issue of restitution for a hearing, but S.S. objected. Instead, the court ordered him to pay $200 “to at least cover some loss of the phone according to the contract.” S.S.’s counsel then presented testimony showing that he was 15 years old, lived with his mother and did not have a job, bank or savings account or property. Thus, S.S. asked the court to find that he was unable to pay.

The trial court decided on the same day to order S.S. to complete 40 hours of a restitution work program and pay the earlier discussed $200. However, the court further noted that “(S.S.’s counsel) requests that the youth be found indigent as he does not have (t)he ability to pay restitution. Court notes same. Court authorizes the release of youth’s documents to the victim for civil litigation.”

S.S. appealed in S.S. v. State of Indiana, 49A05-1605-JV-1070, and the Indiana Court of Appeals found in his favor on Tuesday.

Judge Melissa May, writing for the unanimous panel, said the court noted that S.S. was not able to pay, and the defendant himself presented evidence of his indigency. Thus, the trial court’s order for restitution was an abuse of discretion, May wrote, and the appellate panel ordered the trial court to vacate the portion of the dispositional order dealing with the payment of restitution.


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