concurring in part and dissenting in part.
I fully concur in Part I of the majority opinion. I must respectfully dissent, however, with respect to the rationale upon which the majority reverses the restitution order.
As noted, "[when a trial court orders restitution as a condition of probation, I.C. 35-38-2-2.3(5) requires that the amount of restitution not exceed an amount the defendant can or will be able to pay. See Miller v. State (1986) Ind., 502 N.E.2d 92, 96." This court also has determined that the trial court must hold a hearing to determine the amount of restitution the defendant can or will be able to pay in order to satisfy equal protection concerns. Sales v. State (1984) Ind.App., 464 N.E.2d 1336. Additionally, this court has determined that reliance upon a presentence report containing financial and employment information is "adequate to allow the trial court to make an informed and fair decision as to the amount of restitution to be paid...." Mitchell v. State (1990), 4th Dist.Ind.App., 559 N.E.2d 313, 315, trans. denied.
The order of restitution is a matter within the trial court's discretion. In Mitchell, this court noted that "(imposition of restitution is a form of punishment and although it may cause some hardship, the trial court has discretion to determine the extent of the hardship and whether the defendant can still subsist after the payments." Id. at 315.
In this case, the trial judge properly held a restitution hearing. Moreover, the record indicates that the trial judge considered Savage's ability to pay in reaching her decision, relying both upon testimony and upon pre-sentence materials prepared by Savage and the probation office.15 The presentence materials provided the trial judge with, inter alia, Savage's family history, marital history, educational background, work history, health status, employment status, and financial information. Therefore, I would conclude that the ordered restitution is not manifestly unreasonable, and that the trial judge did not abuse her discretion in arriving at the amount of restitution ordered in this case.
In my view, the trial judge did, however, abuse her discretion with regard to the manner of payment. In Mazwell v. State (1983) 3d Dist.Ind.App., 455 N.E.2d 1171, a defendant appealed the trial court's order of restitution, arguing that the trial court abused its discretion in failing to order the manner of payment.16 There, we held that the trial court abused its discretion in failing to fix the manner of performance, noting that "although the record does not indicate that the court considered Maxwell's ability to pay, we cannot say the record shows the amount imposed to be an improper choice so long as *1164Maxwell is not required to pay any significant percentage of the total in any one payment." Id. at 1176 (emphasis in original). In Mazwell, we further indicated that "[t]he purpose of restitution is to make reparation to the victim and to give the defendant an alternative to jail. This purpose is defeated if the restitution is potentially impossible as it is where a person of [modest] means is ordered to pay [$1,284.00] with no payment breakdown." Id.
Here, the trial court ordered as follows: "IT IS ORDERED, ADJUDGED AND DECREED that the defendant, Delbert Savage, pay restitution in the amount of $164,998.59 to Indiana Family and Social Services Administration on behalf of Medicaid through the Marion County Probation Office or directly through the United States Mail." Supp.Record at 1. I would find that the manner of payment principles enunciated in Maxwell apply to this case. Given Savage's financial situation, it is clear that he cannot make a lump sum payment of $164,998.52. Accordingly, merely specifying payment either through the probation office or via U.S. Mail is insufficient to satisfy the statutory requirement that the court fix the proper manner of payment. The trial court's order does not establish any type of payment plan or payment schedule, nor does it specify whether Savage must make a lump sum payment.
The majority accurately observes that, based upon past employment and even upon current employment prospects, Savage will never be able to pay the full amount. However, I am of the view that it is inappropriate to relieve him, as a matter of law, from an equitable obligation brought about by his own misconduct. -It is possible, even though not probable, that in the future Savage may improve his marketable work skills. If that event does not occur or, if his financial ability varies from time to time, periodic review of his restitution obligation may be sought. In so stating, I would note that despite the heavy financial burden placed upon Savage by the trial court, he may not be made to suffer sanctions or punishment for inability to pay. He may be sanctioned only for a willful refusal to pay what he is able to pay.
. The restitution order itself reads as follows: ''Based upon the pre-sentence investigation and evidence presented at the sentencing hearing on this matter...." Supp.Record at 1. The trial judge also considered the testimony of the injured passenger.
. The statute in effect and at issue at the time of Maxwell was I.C. 35-7-2-1(a)(5), which provided, in relevant part, as follows: "[Als conditions of probation, the court may require that the person: ... (5) make restitution or reparation to the victim of his crime for the damage or injury that was sustained (When a restitution or reparation is a condition of the sentence, the court shall fix the amount thereof, which may not exceed an amount the person can or will be able to pay, and shall fix the manner of performance.)". 455 N.E.2d at 1175 (quoting statute). This language is identical to that now codified at I.C. 35-38-2-2.3(a)(5).