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Wednesday, September 23, 2009
Ind. Decisions - Another NFP COA decision reclassified
The case is Casimir Szpunar v. State of Indiana (49A02-0812-CR-1136 ) - NFP opinion issued 7/16/09; Appellant's motion for publication filed 8/17/09; Ordered published 9/17/09.
From the opinion:
“[F]ailure to pay a probation user fee where the probationer has no ability to pay certainly cannot result in a probation revocation.” Woods, 892 N.E.2d at 641. As noted above, a defendant’s ability to pay is based upon such factors as his financial information, health, and employment history. Champlain, 717 N.E.2d at 570. The State had the burden of proof, but presented no evidence regarding Szpunar’s ability to pay. Indeed, the State’s evidence did not address: (1) the fact that the probation department deemed Szpunar compliant in a status hearing on September 10, 2007; (2) his heart attack and surgery in November 2007; (3) Fifer’s acknowledgement in a hearing on June 30, 2008 that Szpunar had “been unable to work”; or (4) the fact that Szpunar had been released from the St. Vincent Stress Center just four days earlier. Id. at 73. The trial court abused its discretion in revoking Szpunar’s probation. Reversed.
Posted by Marcia Oddi on September 23, 2009 11:04 AM
Posted to Ind. App.Ct. Decisions