Michael B. Eliseo v. State of Indiana
Michael B. Eliseo v. State of Indiana
Opinion of the Court
OPINION
Michael B. Eliseo appeals an order that he pay $300.00 for a supplemental public defender service fee and $166.00 in court costs. He asserts the trial court abused its discretion in imposing a public defender fee larger than $100.00 and erred in assessing the fee and costs without an explicit finding that he was able to pay. We affirm.
FACTS AND PROCEDURAL HISTORY
On June 8, 2012, the State charged Eliseo with Class D felony theft,
DISCUSSION AND DECISION
1. Assessing the Public Defender Fee and Court Costs
Eliseo asserts the trial court abused its discretion by imposing fees without first holding a hearing to determine Eliseo’s ability to pay. Ind.Code § 33-37-2-3 states:
(a) Except as provided in subsection (b), when the court imposes costs, it shall conduct a hearing to determine whether the convicted person is indigent ...
(b) A court may impose costs and suspend payment of all or part of the costs until the convicted person has completed*780 all or part of the sentence. If the court suspends payment of the costs, the court shall conduct a hearing at the time the costs are due to determine whether the convicted person is indigent.
The trial court ordered Elíseo to pay the public defender fees and court costs “within 180 days of [Eliseo’s] release from incarceration.” (App. at 70) (emphasis added). Therefore, in accordance with Ind.Code § 33-37-2-3(b), the trial court was not required to hold a hearing determining Eliseo’s ability to pay the fees until Elíseo completes the executed portion of his sentence. See Rich v. State, 890 N.E.2d 44, 48 (Ind.Ct.App. 2008) (hearing to determine ability to pay fees need not be held until executed portion of sentence is completed), trans. denied.
2. Amount of Public Defender Fee
Elíseo argues the trial court abused its discretion when it imposed a public defender fee of more than $100.00. He cites Ind.Code § 35-33-7-6, which sets a $100.00 cap for the public defender fee following a felony conviction. But the trial court “can order reimbursement [of fees] under any [of the statutes] or a combination thereof.” Jackson v. State, 968 N.E.2d 328, 333 (Ind.Ct.App. 2012). Two other statutes, Ind.Code § 33-40-3-6
CONCLUSION
The trial court did not abuse its discretion when it did not conduct a hearing on Eliseo’s ability to pay fees because he was not required to pay until after he was released from incarceration. Also, the trial court did not abuse its discretion when it ordered him to pay a $300.00 public defender fee because the amount was within the statutory limit. Accordingly, we affirm.
Affirmed.
. Ind.Code § 35-43-4-2(a) (2012).
. Ind.Code § 35-43-4-2(b) (2012).
. Ind.Code § 35-41-2-4 (2012) (aiding, inducing or causing) and Ind.Code § 35-43-4-2(a) (2012) (theft).
.Ind.Code § 35-41-5-2 (2012) (conspiracy) and Ind.Code § 35-43-4-2(a) (2012) (conspiracy).
. Ind.Code § 33-40-3-6 states in relevant part: “If at any stage of a prosecution for a felony ... the court makes a finding of ability to pay the costs of representation ... the court shall require payment by the person [of] ... [Reasonable attorney’s fees if an attorney has been appointed for the person by the court.”
. Ind.Code § 33-37-2-3 states in relevant part: “[T]he court shall order the person to pay: ... (2) the entire amount of the costs at some later date[.]”
Concurring Opinion
concurring in result.
I agree with the majority that, even though the trial court does not explicitly state the statutory basis upon which it relied for imposing fees, it is clear that the trial court ordered Elíseo to pay public defender fees and court costs pursuant to its authority under Indiana Code section 33-37-2-3(b). See Berry v. State, 950 N.E.2d 798, 800 (Ind.Ct.App. 2011). Because the court specifically found Elíseo to be indigent at the initial hearing and did not subsequently make any findings to the contrary, I write separately to emphasize that the trial court remains obligated to conduct a hearing on Eliseo’s indigency “at the time the costs are due.” Ind.Code § 33-37-2-3(b).
. Although Eliseo unsuccessfully challenges the trial court’s failure to specify the statutory basis for imposing a $300 public defender fee, he raises no similar argument regarding the trial court’s imposition of $166 in court costs without specifying the statutory authority therefor. See Berry, 950 N.E.2d at 803 (requiring the trial court to “identify the statutory sources that support its imposition of $364 in court costs”).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.