concurring.
As the majority opinion notes, notwithstanding the decriminalization of traffic violations designated as "infractions", the monetary judgment entered as a result thereof is "the functional equivalent of a penal fine". At 1886. It is for this reason that Horne's argument concerning jury participation in the penalty stage has more than superficial appeal.3
That the fixing of the amount due from a violator would seem more appropriately to fall within the purview of the court rather than the jury is also indicated by 1.C. 34-4-32-5. That provision requires the county court judge to establish a traffic violations bureau, to designate those traffic violations which shall lie within the authority of the violations clerk, and to establish a schedule of the judgments to be imposed.
Nevertheless, the submission to the jury of the matter of "damages" in an infraction case has either emanated from or has received the imprimatur of The Indiana Judges Association pursuant to its Model Final Instruction as set forth in Benchbook for Troffic Misdemeanors and Small Claims § 2.16. The pertinent part of that instruction reads:
"If you find from a preponderance of the evidence that the defendant did commit the infraction as charged and is liable therefore (sic) then it is your further duty to assess the damages in an amount not less than zero dollars not more than $2202,."
*1338The procedure is no doubt being uniformly followed throughout the state. For this reason, if prospective modification of that practice is to be directed, such direction should come from our Supreme Court.
I concur in the affirmance of the judgment.
. It may be noted that the 1981 decriminalization process was not motivated by any complex design to delineate between and among crimes, traffic violations, and civil proceedings. Rather, the purpose of the change was prompted, very simply, by a legislative desire to channel additional funds into the state general fund. See I.C. 34-4-32-4. Prior to the statutory change, all such violations were deemed and were in fact breaches of the penal laws of the state, the fines for which were constitutionally required to be paid into the Common School Fund. Ind. Const., Art. 1, § 2.