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: ATTORNEYS FOR APPELLEE: 

MARK SMALL GREGORY F. ZOELLER 

Indianapolis, Indiana Attorney General of Indiana 

KATHERINE MODESITT COOPER 

Deputy Attorney General 

Indianapolis, Indiana 

IN THE 

COURT OF APPEALS OF INDIANA

JEFFREY S. BURKE, ) 

) 

Appellant-Defendant, ) 

) 

vs. ) No.52A02-1402-CR-64 

) 

STATE OF INDIANA, ) 

) 

Appellee-Plaintiff. ) 

APPEAL FROM THE MIAMI CIRCUIT COURT 

The Honorable Timothy P. Spahr, Judge 

Cause No. 52C01-0610-FC-197 

September 5, 2014 

MEMORANDUM DECISION - NOT FOR PUBLICATION 

FRIEDLANDER, Judge 
2

Jeffrey S. Burke appeals following the revocation of his probation, raising the 

following restated issue for our review: Did the trial court’s imposition of Burke’s 

previously suspended sentence, based in part on his failure to pay court costs and 

probation-user fees, without awarding a credit toward the accrued costs and fees violate 

double jeopardy principles?

We affirm.

In 2007, Burke pleaded guilty to forgery as a class C felony. He was sentenced to 

four years, given credit for time served, and the remaining balance of three years and 299 

days was suspended to probation. The State filed its first petition to modify or revoke 

Burke’s probation in December 2010, but Burke failed to appear at the hearing on the 

petition. A warrant was issued for Burke’s arrest at that time, but the warrant was not 

served until October 2013. In the interim, the State had filed two amended petitions to 

revoke Burke’s probation, and it filed one more amended petition after the warrant was 

served. The petitions alleged, in pertinent part, that Burke had violated his probation by 

committing multiple new offenses and failing to pay probation-user fees and court costs. 

At a hearing on December 19, 2013, Burke admitted to violating his probation by 

committing the new offense of obtaining a controlled substance by fraud or deceit and by 

failing to pay probation-user fees and court costs. On January 16, 2014, the trial court 

revoked Burke’s probation and ordered him to serve the entirety of his previously 

suspended sentence. Additionally, the trial court ordered that Burke’s outstanding court 

costs and probation-user fees, totaling $2,064, be reduced to a judgment against Burke in 

favor of the State. Burke now appeals.
3

Burke makes no argument that the trial court abused its discretion by revoking his 

probation or ordering him to serve the entirety of his previously suspended sentence. 

Burke’s sole argument on appeal is that “[i]mposition of the suspended sentence and

payment of costs and fees violates principles of double jeopardy.” Appellant’s Brief at 8 

(emphasis in original). The double jeopardy clauses of both the federal and state 

constitutions prohibit multiple punishments for the same offense. Wilcox v. State, 748 

N.E.2d 906 (Ind. Ct. App. 2001), trans. denied. Burke argues that by being required to 

serve the remainder of his suspended sentence and pay his already-accrued court costs 

and probation-user fees, he is being twice punished for a single probation violation, i.e., 

his failure to pay costs and fees.

Burke’s argument is without merit. As this court has explained:

[A] violation of a condition of probation does not constitute an offense 

within the purview of double jeopardy analysis. Revocation proceedings 

are based upon violations of probation conditions rather than upon the 

commission of a crime, and the finding of whether a defendant has 

complied with these conditions is a question of fact and not an adjudication 

of guilt. Moreover, because double jeopardy protection applies only to 

criminal proceedings and probation revocation proceedings are not criminal 

proceedings, violations must be proven only by a preponderance of the 

evidence. 

McQueen v. State, 862 N.E.2d 1237, 1243 (Ind. Ct. App. 2007) (citations omitted). 

Moreover, the court costs and probation-user fees had already accrued prior to the 

revocation of Burke’s probation. Accordingly, the requirement that he pay these costs 
4

and fees was clearly not a punishment for Burke’s probation violation. Thus, principles 

of double jeopardy are not implicated here.

1

 

Judgment affirmed.

VAIDIK, C.J., and MAY, J., concur. 

 

1 Burke quotes Bearden v. Georgia, 461 U.S. 660 (1983), at length, noting that the U.S. Supreme 

Court held that when probation is revoked for failure to pay fines or restitution, the court must inquire 

into the reasons for nonpayment, and where the probationer is unable to pay, consider alternative means 

of punishment other than imprisonment. Burke has made no argument that he was unable to pay the 

outstanding costs and fees—indeed, he testified that he had “more than enough money to pay” them. 

Transcript at 30. Moreover, Bearden v. Georgia did not address issues of double jeopardy in any way. 

We are therefore at a loss as to the relevance of the quoted language to Burke’s appeal.