To revoke a defendant's probation for failing to pay financial obligations, the State must prove that the probationer had the ability to pay. The Indiana Court of Appeals has reversed a trial court's order to revoke probation, because the State failed to present evidence that the defendant had the ability to make the payments that were ordered as a term of probation.
1) less than full payment; and
2) the probationer submitted less than full payment recklessly, knowingly, or intentionally.
To prove "knowingly" the State must show by a preponderance of the evidence that the probationer was able to pay. In the case at hand, the defendant denied that he had violated probation, despite the fact that he had not made the payments that were ordered. He presented evidence that health problems and unemployment contributed to his inability to make the ordered payments. At the evidentiary hearing, the State failed to present evidence to establish the defendant was able to pay.
The trial court found that the defendant failed to make the ordered payments during a time in which he was employed, and revoked the defendant’s entire three year sentence. The Indiana Court of Appeals ruled that despite the fact the defendant had failed to make payments during a time when he was employed, the burden of proof remained on the State to prove by a preponderance of evidence that the defendant had the ability to make the payments.
It should be noted that, a defendant who admits to violating probation by failing to meet financial obligations, waives the requirement that the State prove that the defendant had the ability to pay. If the State files a petition to revoke probation in Indiana, alleging that the defendant failed to meet financial obligations, it is important to contact an experienced Indiana criminal attorney. The petition to revoke probation may be able to be successfully defended at an evidentiary hearing. The burden of proof is on the State at an evidentiary hearing. An experienced criminal attorney may be able to successfully defend a probation violation based on failure to pay court-ordered financial obligations, by holding the State to its burden of proof.
