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Wellbaugh v. State

COURT OF APPEALS OF INDIANA
Dec 11, 2014
No. 49A02-1404-CR-271 (Ind. App. Dec. 11, 2014)

Opinion

No. 49A02-1404-CR-271

12-11-2014

TIMOTHY WELLBAUGH, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.

ATTORNEY FOR APPELLANT: SUZY ST. JOHN Indianapolis, Indiana ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana GRAHAM T. YOUNGS Deputy Attorney General Indianapolis, Indiana


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
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER
Attorney General of Indiana
GRAHAM T. YOUNGS
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David Cook, Judge
The Honorable Patrick Murphy, Commissioner
Cause No. 49F07-1401-CM-3147

MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

Timothy Wellbaugh challenges the court's order imposing a $50.00 public defender fee. We remand.

FACTS AND PROCEDURAL HISTORY

On January 21, 2014, the State charged Wellbaugh with Class A misdemeanor resisting law enforcement. The court found Wellbaugh indigent. On finding Wellbaugh guilty, the court sentenced him to 180 days probation, eighty hours of community service work, and "no fines or costs." (Tr. at 44.) However, when the sentence was entered into the Chronological Case Summary (CCS), it indicated the trial court assessed a $50.00 supplemental public defender fee. (App. at 8.)

DISCUSSION AND DECISION

Ind. Code § 35-33-7-6(a) provides a trial court must determine the indigency of a defendant and assign counsel if the defendant is indigent. Ind. Code § 35-33-7-6(c) determines the maximum fee to be paid by parties represented by the public defender's office. Ind. Code § 33-37-2-3 addresses fees that may be assessed if a party is not indigent. Ind. Code § 33-40-3-6 states if the court "makes a finding of ability to pay the costs of representation," the court can assess fees. Thus, a trial court must determine, prior to an assessment of public defender fees, indigency or whether the party has the ability to pay the costs of representation.

The State concedes the trial court did not assess Wellbaugh's ability to pay fees. We agree and remand so the trial court may assess Wellbaugh's ability, if any, to pay the public defender fee.

Remanded. BARNES, J., and PYLE, J., concur.


Summaries of

Wellbaugh v. State

COURT OF APPEALS OF INDIANA
Dec 11, 2014
No. 49A02-1404-CR-271 (Ind. App. Dec. 11, 2014)
Case details for

Wellbaugh v. State

Case Details

Full title:TIMOTHY WELLBAUGH, Appellant-Defendant, v. STATE OF INDIANA…

Court:COURT OF APPEALS OF INDIANA

Date published: Dec 11, 2014

Citations

No. 49A02-1404-CR-271 (Ind. App. Dec. 11, 2014)