MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Suzy St. John

Marion County Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Tyler G. Banks

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jeremey Smith,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

October 16, 2015

Court of Appeals Case No.

49A05-1502-CR-58

Appeal from the Marion Superior 

Court

The Honorable Allan Reid, 

Commissioner

Trial Court Cause No.

49F10-1404-CM-17368

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1502-CR-58 | October 16, 2015 Page 1 of 4
Case Summary

[1] Jeremey Smith (“Smith”) appeals a restitution order entered following his 

convictions of Battery, as a Class A misdemeanor,1 and Criminal Mischief, as a 

Class B misdemeanor.2

 Smith presents the sole issue of whether the order was 

entered without statutory compliance. We reverse and remand the restitution 

order.

Facts and Procedural History

[2] On March 21, 2014, Rickey Jolly (“Jolly”) approached his vehicle in a 

WalMart parking lot and was confronted by his brother-in-law, Smith, 

regarding Jolly’s alleged mistreatment of Smith’s sister. Smith punched Jolly in 

the face and threw down Jolly’s cell phone, breaking the screen. 

[3] Smith was arrested, charged with Battery and Criminal Mischief, and convicted 

of those charges at the conclusion of a bench trial. He received an aggregate 

sentence of one year, with 363 days suspended to probation. Smith was also 

ordered, as a condition of probation, to pay Jolly $150.00 for the cell phone 

replacement plan deductible. Smith was found to be indigent for purposes of 

fines and court costs. This appeal ensued.

1 Ind. Code § 35-42-2-1.

2 I.C. § 35-43-1-2.

Court of Appeals of Indiana | Memorandum Decision 49A05-1502-CR-58 | October 16, 2015 Page 2 of 4

 
Discussion and Decision

[4] Indiana Code Section 35-38-2-2.3(a)(6) provides that the court may require, as a 

condition of probation, that a person make restitution to the victim of the crime. 

The court must “fix the amount, which may not exceed an amount the person 

can or will be able to pay, and shall fix the manner of performance.” Id. The 

statute does not set forth a particular procedure the trial court must follow in 

determining the defendant’s ability to pay, but “some form of inquiry is 

required.” Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012). Ability to pay 

includes such factors as the defendant’s financial information, health, and 

employment history. Id. The purpose of this requirement is to prevent indigent 

defendants from being imprisoned because of their inability to pay. Id.

[5] The State concedes that the trial court’s restitution order in this case does not 

fix the manner of performance. However, the State contends that remand 

should be solely to fix payment terms because the trial court was sufficiently 

apprised of Smith’s financial condition when defense counsel argued that 

probation was too restrictive because Smith had five children and was 

employed part-time. The State also argues: “a $150 restitution judgment is 

insubstantial, relative to the judgments seen in the case law.” (Appellee’s Br. At 

5.) We are not persuaded that $150 is “insubstantial” or insignificant to an 

indigent defendant. Moreover, we are not free to disregard the requirement that 

the trial court make a specific inquiry into the defendant’s ability to pay. We 

remand to the trial court for a determination of Smith’s ability to pay restitution 

and a determination of the manner of performance.

Court of Appeals of Indiana | Memorandum Decision 49A05-1502-CR-58 | October 16, 2015 Page 3 of 4
[6] Reversed and remanded.

Baker, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1502-CR-58 | October 16, 2015 Page 4 of 4