COA: Restitution must be based on value of damaged car, not upgraded vehicle

January 25, 2017

Trial courts must award restitution based on the cost of an item that was stolen or damaged, not the cost of upgrading to a new item, the Indiana Court of Appeals held Wednesday, so the Marion Superior Court erred when it ordered restitution based on the cost a woman incurred in purchasing a newer vehicle after a wreck.

After being involved in an automobile accident in November 2015, Jerry Baker failed several field sobriety tests, and a breathalyzer test indicated that he had an alcohol concentration equivalent to 0.209 grams of alcohol per 210 liters of breath. Baker was subsequently charged with two counts relating to operating a vehicle while intoxicated and, pursuant to a plea agreement, pleaded guilty to one count of Class A misdemeanor operating a vehicle while intoxicated endangering a person.

A related probation order required Baker to pay $2,080 in restitution to Nancy Appollos, who was the other party in the accident. That cost was determined to be the difference between the insurance payout for Appollo’s totaled vehicle and the cost of her replacement vehicle.

Baker appealed in Jerry Baker v. State of Indiana, 49A02-1605-CR-1154, arguing that the Marion Superior Court abused its discretion in determining the amount of restitution he owed. Specifically, Baker pointed the Indiana Court of Appeals to S.G. v. State, 956 N.E.2d 668 (Ind. Ct. App. 2011), in which the court reversed a restitution order and found that victims are only entitled to the replacement cost of items stolen and not the cost of obtaining “better or more state of the art equipment.”

Because Appollos’ family purchased a replacement car that was newer than the vehicle that was totaled in the wreck, Baker argued that S.G. limits restitution to the cost of replacing the original, older vehicle. A panel of the appellate court agreed, noting Wednesday that the trial court improperly based its restitution order on the $3,800 cost of purchasing a newer vehicle as a replacement, minus an insurance payment of $1,718.81.

Consequently, the appellate panel remanded the case to the trial court with instructions to enter restitution for the value of her previous vehicle prior to the wreck.

Further, the appellate panel found that although the trial court did not check the box indicating that restitution was a condition of probation, the restitution was intended as such. Thus, the court was required to conduct an inquiry in Baker’s ability to pay and to fix the manner of performance regarding payment. The case was remanded for the additional reason of completing that inquiry.


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