Thursday, April 21, 2011
Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)
For publication opinions today (2):
In Rebecca D. Kays v. State of Indiana , a 12-page opinion, Judge Mays writes:
Rebecca Kays appeals an order that she pay restitution as part of her probation for Class B misdemeanor battery. She argues the trial court violated Ind. Code § 35-38-2-2.3(a)(5) by ordering her to pay restitution without inquiring into her ability to pay and by failing to establish the manner and time of payment. The trial court did not inquire adequately into Kay' ability to pay. Neither was there any evidence Kays had income other than social security disability benefits, which may not be assigned by “legal process” pursuant to 42 U.S.C.A. § 407(a). Nor did the trial court adequately indicate the manner and timeframe for payment as required by Ind. Code § 35-38-2-2.3(a)(5).In Michael L. Alexander v. State of Indiana , a 5-page opinion, Judge May writes:
We further note that, pursuant to the reasoning of Stanley v. Walker, 906 N.E.2d 852, 858 (Ind. 2009), reh’g denied, a trial court ought not simply base an order of restitution on a hospital bill without determining whether that bill reflects the “actual cost” to the victim. As the record provided to us does not reflect whether the parties submitted evidence enabling the court to make such a determination, we direct the trial court on remand to, if such evidence exists, revisit the documentation submitted as to the victim's damages and determine whether the amount of restitution ordered reflects the amount actually paid by the victim.
We reverse and remand.
Michael Alexander appeals his conviction of Class C felony operating a motor vehicle after a lifetime suspension of driving privileges. He asserts the police violated his constitutional rights by conducting the initial traffic stop that led to his arrest. We affirm.NFP civil opinions today (3):
After receiving a complaint about Alexander from the management of an apartment complex that had banned him, Mishawaka police checked Alexander's driving record. They found Alexander had a lifetime driving suspension and obtained his picture. Police saw Alexander driving, pulled him over, and arrested him. Alexander was convicted of Class C felony operating a motor vehicle after lifetime suspension of driving privileges.
Alexander contends the police violated his Fourth Amendment rights by obtaining his driving record and picture from Bureau of Motor Vehicles (BMV) records without probable cause. * * *
There is no reasonable expectation of privacy in BMV records. Motor vehicle records may be inspected “if the person requesting the information provides proof of identity and represents that the use of the personal information will be strictly limited to . . . use by a government agency, including a court or law enforcement agency, in carrying out its functions.” Ind. Code § 9-14-3.5-10. * * *
As police inspection of BMV records does not implicate the Fourth Amendment, the police stop of Alexander based on the information in his driver's record was permissible. We therefore affirm the judgment of the trial court.
NFP criminal opinions today (4):
Posted by Marcia Oddi on April 21, 2011 12:41 PM
Posted to Ind. App.Ct. Decisions