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Whitaker v. State

Court of Appeals of Indiana

November 21, 2017

Adam Whitaker, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the Marion Superior Court Trial Court Cause No. 49G17-1610-CM-42782 The Honorable Christina R. Klineman, Judge

          ATTORNEY FOR APPELLANT Rory Gallagher Marion County Public Defender Appellate Division Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Angela Sanchez Supervising Deputy Attorney General Indianapolis, Indiana

          Brown, Judge.

         [¶1] Whitaker appeals the imposition of fees by the probation department. He raises one issue which we revise and restate as whether the trial court erred in releasing his bond in the amount of $740. We reverse and remand.

         Facts and Procedural History

         [¶2] On October 31, 2016, the State charged Whitaker under cause number 49G17-1610-CM-42782 ("Cause No. 782") with domestic battery and battery resulting in bodily injury as class A misdemeanors. The court held a bench trial and found Whitaker guilty of domestic battery.

         [¶3] On May 2, 2017, the court held a sentencing hearing for the conviction under Cause No. 782 as well as a hearing on a plea to invasion of privacy as a class A misdemeanor under cause number 16046715 ("Cause No. 715"). The court found Whitaker guilty of invasion of privacy under Cause No. 715 and stated: "I'll find you indigent for fines and costs and close out this matter." Transcript Volume II at 65. The court then turned to sentencing in Cause No. 782. Whitaker's mother testified that Whitaker worked for a sheet metal company, was doing a job in Columbus, Ohio, and he was working in Ohio through the week and coming home on weekends. Whitaker stated that he was letting his ex-wife live in his condo. Upon questioning by the court, Whitaker indicated that he had housing in Columbus, Ohio, that he lived with friends and family in Indiana, and that he pays $900 a month for his ex-wife to live in his condo. The court sentenced him to 365 days with 359 days suspended, placed him on probation for 359 days, and ordered him to complete a substance abuse evaluation and treatment. It also stated that if he successfully completed treatment, then probation would become non-reporting. The court did not mention probation fees at the sentencing hearing.

         [¶4] The same day, the court entered a sentencing order. Under the heading "CONFINEMENT COMMENTS, " the order states in part: "Defendant is placed on probation for 359 days. Substance Evaluation and Treatment if deemed necessary. Defendant is permitted to travel for work. No Drug Hotline. Probation shall become non reporting upon completion of Substance Evaluation and Treatment. Probation and Substance Abuse fees are sliding scale." Appellant's Appendix Volume II at 15. The order also states: "The Court is assessing Court Costs and Fees in the amount of $0.00 and a Monetary Award (if applicable) in the amount of $. The authority for this Order and the breakdown of the costs and fees are as follows and are found in Indiana Code, Sections 33-37-4-1, -4 and 33-37-5-19." Id. at 16. Under the preprinted headings "MONETARY OBLIGATIONS" and "Court Costs and Fees, " the value of "$0.00" and total value of "$0.00" are listed. Id.

         [¶5] An order of probation was also filed that same day, providing:

Special Conditions
In addition to the monetary conditions, you must also pay the costs of any of the following Court-ordered programs as directed.
Substance Abuse Evaluation & Treatment
* * * * *
Sliding Scale for Probation Fees / DVC Classes / SAET

Id. at 48. The order of probation also included the following:

(Image Omitted)

Id.

         [¶6] A Bond Release Memo filed on June 2, 2017, from a probation officer addressed to the trial court, states in part:

A bond was posted with the Marion County Clerk's Office on the behalf of the above named defendant and cause. The defendant currently owes monetary obligations under this Cause in the amount of $740.00.
The probation Department respectfully requests that the bond be transferred to the Marion Superior Court Probation Department to apply towards the outstanding balance of ...

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