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De La Cruz v. State

Court of Appeals of Indiana

June 23, 2017

Jose Arcia De La Cruz, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the Marion Superior Court The Honorable Rebekah F. Pierson-Treacy, Judge The Honorable Ronnie Huerta, Commissioner Trial Court Cause No. 49G19-1512-CM-45644

          Attorney for Appellant Valerie K. Boots Marion County Public Defender Agency Indianapolis, Indiana.

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana.

          Najam, Judge.

         Statement of the Case

         [¶1] Jose Arcia De La Cruz appeals the imposition of probation fees after his conviction, following a bench trial, for operating a vehicle while intoxicated, as a Class C misdemeanor. He raises one issue on appeal, namely, whether the trial court abused its discretion when it allowed the probation department to assess probation fees against him. In response, the State contends that De La Cruz' appeal is moot.

         [¶2] We disagree that this appeal is moot. On the merits, we reverse the trial court's order that the probation department assess probation fees, and we remand with instructions to vacate the imposition of probation fees and order reimbursement of those fees.

         Facts and Procedural History

         [¶3] On December 23, 2015, the State charged De La Cruz with operating a vehicle while intoxicated endangering a person, as a Class A misdemeanor, and operating a vehicle with an ACE of .15 or more, as a Class A misdemeanor. The trial court appointed counsel for De La Cruz based on his indigency, with no requirement for reimbursement. On September 29, 2016, the trial court conducted a bench trial and found De La Cruz guilty of only the lesser-included offense of operating a vehicle while intoxicated, as a Class C misdemeanor. The trial court then sentenced De La Cruz to sixty days in jail, with fifty-six days suspended, and to an additional 180 days of "non-reporting" probation. Tr. at 37.

         [¶4] During sentencing, the trial court questioned De La Cruz about his finances as follows:

Court: . . . What is your weekly income, sir?
De La Cruz: About three or four hundred dollars, but work has gone down so I don't have work right now.
Court: How much did you earn last week?
De La Cruz: Last week I didn't work. There ...

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