dissenting.
I respectfully dissent.
The majority concludes that there was insufficient evidence from which the trier of-fact could have found that Miller acted with the intent to defraud. "Because specific intent is a mental state not generally susceptible of direct proof, it may be inferred from all the surrounding circumstances." Hammond v. State (1985), Ind.App., 479 N.E.2d 629, 632. Miller, as general contractor for the Spurlocks, purchased building materials from Ziegler Building Materials, Inc. On September 20, 1977, and October 8, 1977, Miller owed Ziegler in excess of $5,000 and $12,000 respectively. On these same dates, Miller accepted payments from the Spurlocks of approximately $12,000 and $14,000. However, Miller did not inform the Spuriocks of his indebtedness to Ziegler on either occasion even though he was certainly aware of it. This was clearly sufficient evidence *595from which the trial court could infer intent to defraud.
The majority has also concluded that the information filed in this case was defective because it failed to include the essential element of intent to defraud. Excluding formal parts, the information stated:
"ESTILL SPURLOCK being duly sworn upon oath says that KIPLEY MILLER on or about June through October, 1977 at said County of Franklin and State of Indiana, did then and there unlawfully perform labor, as a contractor, in the construction of a home for Estill Spur-lock, and accepted payments from Estill Spurlock for such labor and at the time of the acceptance of such payment, said Kipley Miller knew he was indebted to another for material used in the construction of such home, and further, said Kipley Miller at the time of receiving said payments failed to notify Estill Spurlock in writing of the existence of said indebtedness. Estill Spurlock suffered loss thereby. All of which is contrary to the form of the Statute in such cases made and provided and against the peace and dignity of the State of Indiana." (Emphasis added.)
Record at 5. Although I agree with the majority that an information or indictment must allege each essential element of the crime charged, including intent, see McCormick v. State (1954), 233 Ind. 281, 285-86, 119 N.E.2d 5, 7, that requirement was satisfied here. As we held in Brown v. State (1980), Ind.App., 403 N.E.2d 901, troms. denied, it would be preferable to use the words "intent to defraud," but the words actually employed are of the same import. Brown, at 907. The purpose of the charging instrument is to advise the defendant of the crime charged so that he can prepare an adequate defense. McGee v. State (1986), 495 N.E.2d 537, 538; Farmer v. State (1985), Ind.App., 481 N.E.2d 154, 156; Brown, at 908. Nothing in the information challenged here impaired Miller's ability to prepare an adequate defense. Having reached this conclusion, it is necessary to address the other arguments asserted by Miller in his appellate brief.
Miller essentially contends that a state court may not require a defendant, as a condition of probation, to make restitution to his victim for losses occasioned by the commission of the offense when the debt occasioned by the same offense has been discharged in bankruptcy proceedings. However, the majority of courts confronted with this argument have rejected it. See United States v. Roberts (9th Cir.1985), 783 F.2d 767, 77l; United States v. Alexander (7th Cir.1984), 743 F.2d 472, 480; McDonald v. Burrows (5th Cir.1984), 731 F.2d 294, 299; Barnette v. Evans (11th Cir.1982), 673 F.2d 1250, 1252; United States v. Carson (5th Cir.1982), 669 F.2d 216, 217-18; In re Thompson (S.D.Tex.1976), 416 F.Supp. 991, 996; In re Wilson (E.D.Tenn.1983), 30 B.R. 91, 97; People v. Milne (1984), Colo., 690 P.2d 829, 837-838; State v. Angle (1984), Iowa, 353 N.W.2d 421, 424; People v. Topping Brothers, Inc. (1974), 79 Misc.2d 260, 261-62, 359 N.Y.S.2d 985, 987. See contra In re Penny (W.D.N.C.1976), 414 F.Supp. 1113, 1115; In re Strossmann (E.D.Pa.1982), 18 B.R. 346, 347; In re Whitaker (M.D.Tenn.1982), 16 B.R. 917, 922-23; In re Lake (S.D.Ohio 1981), 11 B.R. 202, 205. I would adopt the view taken by the majority of these courts.
The fact that a criminal defendant's personal liability has been discharged in bankruptcy does not preclude an order of restitution as a component of a criminal sentence. Probation is a criminal sanction aimed at providing an offender with the opportunity to rehabilitate himself without being confined to a correctional institution. Carson, at 217; Alexander, at 480; Milne, at 837. Restitution, as a condition of probation, can 'be an instrumental part of the offender's rehabilitation.
"Restitution can aid an offender's rehabilitation by strengthening the individual's sense of responsibility. The probationer may learn to consider more carefully the consequences of his or her actions. One who successfully makes restitution should have a positive sense of having earned a fresh start and will have tangible evidence of his or her capacity *596to alter old behavior patterns and lead a law-abiding life. Conditioning probation on making restitution also protects the community's interest in having victims of crime made whole."
Carson, at 218, quoting Huggett v. State (1978), 88 Wis.2d 790, 798, 266 N.W.2d 403, 407. See also Milne, at 837; People v. Mosesson (1974), 78 Misc.2d 217, 218, 356 N.Y.S.2d 483, 484. The primary goal of restitution is, therefore, to vindicate the rights of society, not to compensate the offender's victim, although that is certainly a result of the restitution. Carson, at 217; Milne, at 837. Thus, an order of restitution is as much a part of a criminal sentence as a fine or other penalty. Milne, at 887. The purpose of the Bankruptcy Act, on the other hand, is to give overextended individuals a fresh start financially. Perez v. Campbell (1971), 402 U.S. 637, 648, 91 S.Ct. 1704, 1710-11, 29 L.Ed.2d 233, 241. It is not meant to be used as a refuge for those seeking to avoid responsibility for their criminal acts. Milne, at 837; Topping Brothers, 79 Misc.2d at 261-62, 359 N.Y.S.2d at 987; Mosesson, 78 Misc.2d at 219, 356 N.Y.S.2d at 485. Therefore, I would agree with those courts which have found that, in the circumstances of this particular case, a restitution order does not impinge on any of the defendant's federally protected rights.
Finally, Miller correctly points out, and the state concedes, that the trial court failed to determine his ability to pay the amount of restitution ordered. Indiana Code section 85-88-2-2(a)(5) provides:
"Conditions of probation-Intermittent term of imprisonment-Court supervision.-(a) As conditions of probation, the court may require the person to do any combination of the following:
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"(5) Make restitution or reparation to the victim of his crime for the damage or injury that was sustained. When restitution or reparation is a condition of probation, the court shall fix the amount, which may not exceed an amount the person can or will be able to pay, and shall fix the manner of performance."
This provision clearly requires the trial court to determine the defendant's ability to pay the amount of restitution ordered. Smith v. State (1984), Ind.App., 471 N.E.2d 1245, 1248-49, trans. denied; Sales v. State (1984), Ind.App., 464 N.E.2d 1336, 1340; Maxwell v. State (1983), Ind.App., 455 N.E.2d 1171, 1175-76, trans. denied. Here, however, the trial court made no inquiry into Miller's ability to pay restitution of $17,000. Nor did it set a manner of performance other than to require Miller to make arrangements within 120 days to pay the amount. This is of particular concern in a case where the defendant has recently been adjudged bankrupt. See Soles, at 18340. Thus, I would remand for a hearing and the entry of findings in accordance with Soles v. State. In light of that conclusion, it is unnecessary, at this time, to address Miller's argument that an order of restitution in the amount of $17,000 constitutes an unconstitutionally excessive fine.
For the foregoing reasons, I respectfully dissent.