restitution any fine in the special assessment under three zero one three i think the exclusion of three zero one four from that language would exclude the special assessment under three  appeal and i think that the just back to a question about the construction of the statute that my client was a special assessment under the very language three zero one four states that the assessment is imposed shall be impose non defendant we simply don't have that situation here my client was indigent for the appointment of c j counsel the pre sentence report finds my client to be indigent and to have no ability to pay a fine or to pay to pay any type of fine at the sentencing hearing found my client you have no ability to pay a fine right be that at some point he would be able to be released from incarceration and be again a member of society and this five thousand dollars special assessment would impede upon his ability to do that i don't know the answer to that you or your honor but i would presume that under the bankruptcy code it would fall in the same provisions that other criminal finds find though it's a special assessment it is a special assessment lock with not as a result of any type of fraud so i don't know the answer to that much question it's something that i had not considered i would be happy to look that up but if you're on a good many people look  mr kelly should be assessed the special assessment however the difference in that case says that mr kelly was not found to be indigent she was also a fine  case are different enough that we can assume that there was no finding of indigence there similarly however in mr case we don't see an argument by the government that the special assessment should be imposed we don't see any evidence actually presented by the government of mr goldman's current or future capabilities of his current or future  the judge states that he finds he has no ability now and based on his fear future earning abilities finds that he has no ability to pay a fine and i think that under kelly is going to be a deciding factor in this case whether or not mr bowen has future ability the course that we decide to take however my client's argument would be that the simple terms of the statute differ from the words that we see used in any other statute that we're looking at when we look at three zero one three we don't see a requirement that the defendant be no indigent out when we look at fines we don't see a requirement that the defendant be non indigent the very inclusion of those words by the drafters of the statute and and those words being adopted into the statute that we're looking at leads a reasonable person to believe that that's a strong that has to be made and that that's a showing that needs to be maintained by the government in presenting some evidence and some testimony to set out whether indigency exists now or chooses to require in the future as well similar to what we see for restitution but we don't have that here in this case and and we actually have in the government's brief that was filed a concession that my client is and it's contained in the summary of the argument so my client's position would be that three zero one four require because he is has not been found to be non indigent at the five thousand dollars special assessment not being assessed against him and his request would be that the five thousand dollars special assessment be removed from the terms of the judgment but that the balance of the plea agreements remain penalty or for true what's a special i don't know the answer to that question but your honor maybe it's never been litigated i'm not sure that it has i don't know phrase is not used anywhere in the bankruptcy except for special assessments on real estate for  years but other than that it's not used in the co i don't know what i would say is in practice how does it work when mr poland is released he would agree to set a monthly payment with probation department