Tuesday, March 20, 2012
Ind. Decisions - Supreme Court issues one, so far, today
In Rebecca D. Kays v. State of Indiana, a 6-page, 5-0 opinion, the issue is "the propriety of a trial court’s restitution order against a criminal defendant whose income is comprised entirely of social security disability benefits." Justice Rucker continues:
The trial court further ordered as a term of probation that Kays pay restitution to Wolfe in the amount of $1,496.15 – which Kays agreed was the amount of Wolfe’s hospital bill related to the injury. Kays objected, however, to the amount of restitution on the grounds she lacked the ability to pay it. Kays testified at the sentencing hearing that her sole source of income was $674.00 per month in social security disability payments, and the ordered restitution “is well beyond what [Kays] could possibly ever pay.” The trial court nonetheless ordered restitution of $1,496.15 and noted Kays could “stretch that out over a period of time,” but left the details “to be dealt with between [Kays] and [the department of] probation over this probationary period.” * * *
We now reverse the trial court’s decision and remand with instructions. * * *
Our decisions envision at least a minimal inquiry into the defendant’s ability to pay restitution, which is absent here. On this issue we agree with the Court of Appeals and remand this cause to the trial court for a determination of Kays’ ability to pay restitution and a determination of her manner of payment.
We disagree, however, with our colleagues’ [COA] conclusion that “restitution may not be based on social security income” and therefore the trial court must “ignore Kays’ social security income” in determining her ability to pay. * * *
we find nothing in 42 U.S.C. § 407(a) to prohibit a trial court from considering a defendant’s social security income when determining the “amount the person can or will be able to pay” in restitution pursuant to Indiana Code section 35-38-2-2.3(a)(5).
Conclusion. We remand this cause to the trial court for further proceedings consistent with this opinion.
Posted by Marcia Oddi on March 20, 2012 12:26 PM
Posted to Ind. Sup.Ct. Decisions