                                                                                        FILED
                                                                                    Feb 07 2018, 8:21 am

                                                                                        CLERK
                                                                                    Indiana Supreme Court
                                                                                       Court of Appeals
                                                                                         and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Victoria L. Bailey                                         Curtis T. Hill, Jr.
      Marion County Public Defender Agency                       Attorney General of Indiana
      Indianapolis, Indiana
                                                                 Monika P. Talbot
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana




                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jimmy Person,                                              February 7. 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A02-1708-CR-1737
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Alicia Gooden,
      Appellee-Plaintiff                                         Judge
                                                                 Trial Court Cause No.
                                                                 49G21-1503-F5-11184
                                                                 49G21-1602-F4-7143




      May, Judge.


[1]   Jimmy Person appeals a portion of the trial court’s restitution order. He argues

      the trial court abused its discretion when it ordered him to pay for Rosa Bailey’s
      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1737 | February 7, 2018                           Page 1 of 4
      pain and suffering and her use of public transportation. The State concedes the

      trial court abused its discretion. We reverse and remand.



                                Facts and Procedural History
[2]   On July 11, 2017, the trial court sentenced Person, pursuant to a plea

      agreement, to an aggregate sentence of eleven years for Level 5 felony dealing

      in cocaine, 1 Level 4 felony dealing in cocaine, 2 Level 6 felony resisting law

      enforcement, 3 and Class A misdemeanor leaving the scene of an accident with

      bodily injury. 4 Additionally, the trial court ordered Person to pay $7,284 in

      restitution to Bailey, who was injured when Person crashed his car into Bailey’s

      car while fleeing from police. The amount of restitution included $2,385 for

      Bailey’s medical expenses; $600 for the value of her car; $1,914 for the cost of

      Bailey’s use of public transportation for the days she did not have a vehicle; and

      $2,385 for Bailey’s pain and suffering.



                                     Discussion and Decision
[3]   “Generally, an order of restitution is within the trial court’s discretion, and it

      will be reversed only upon a finding of an abuse of that discretion. An abuse of




      1
          Ind. Code § 35-48-4-1(a) (2014).
      2
          Ind. Code § 35-48-4-1(c) (2014).
      3
          Ind. Code § 35-44.1-3-1(b)(1) (2014).
      4
          Ind. Code § 9-26-1-1.1(b)(1) (2015).


      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1737 | February 7, 2018   Page 2 of 4
      discretion occurs when the trial court misinterprets or misapplies the law.”

      Green v. State, 811 N.E.2d 874, 877 (Ind. Ct. App. 2004). Indiana Code section

      35-50-5-3(a) governs restitution, and states in relevant part:


              The court shall base its restitution order upon a consideration of:


                       (1) property damages of the victim incurred as a result of
                       the crime, based on the actual cost of repair (or
                       replacement if repair is inappropriate);


                       (2) medical and hospital costs incurred by the victim
                       (before the date of sentencing) as a result of the crime;


                       (3) the cost of medical laboratory tests to determine if the
                       crime has caused the victim to contract a disease or other
                       medical condition;


                       (4) earnings lost by the victim (before the date of
                       sentencing) as a result of the crime including earnings lost
                       while the victim was hospitalized or participating in the
                       investigation or trial of the crime; and


                       (5) funeral, burial, or cremation costs incurred by the
                       family or estate of a homicide victim as a result of the
                       crime.


[4]   Person argues the trial court abused its discretion when it ordered him to pay

      for Bailey’s public transportation expenses and her pain and suffering because

      the restitution statute does not provide for payment of those expenses. The

      State concedes the trial court abused its discretion, and we agree. See, e.g.,

      Springer v. State, 798 N.E.2d 431, 436 (Ind. 2003) (reversing portion of
      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1737 | February 7, 2018     Page 3 of 4
      restitution order requiring Springer to pay the cost of airline tickets for victim’s

      father because “the General Assembly has not authorized the trial court to

      include this expense in its restitution order because none of the statutory

      restitution categories includes [sic] any language that could be construed to

      authorize it”), reh’g denied; see also Rich v. State, 890 N.E.2d 44, 53 (Ind. Ct. App.

      2008) (reversing trial court’s restitution order requiring Rich to pay for the cost

      of victim’s security because no portion of the restitution statute could be

      construed to require him to do so), trans. denied.



                                               Conclusion
[5]   The trial court abused its discretion when it ordered Person to pay restitution

      for Bailey’s public transportation expenses and her pain and suffering. We

      reverse the trial court’s restitution order in those respects and remand for

      correction of the trial court’s restitution order to reflect the correct amount of

      $2,985, which reimburses Bailey for the loss of her car and her medical

      expenses.


[6]   Reversed and remanded.


      Vaidik, C.J., and Altice, J., concur.




      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1737 | February 7, 2018   Page 4 of 4
