766 N.E.2d 416 | Ind. Ct. App. | 2002
OPINION ON REHEARING
We consider the State's petition for rehearing in which it argues that we erred in concluding that the trial court abused its discretion in imposing a $125.00 criminal costs fee under Indiana Code Section 33-19-5-1(a). See Like v. State, 760 N.E.2d 1188, 1193 (Ind.Ct.App.2002). Indiana Code Section 33-19-5-1(a) provides that "flor each action that results in a felony conviction under IC 85-50-2 . the clerk shall collect from the defendant a criminal costs fee of one hundred twenty dollars ($120)." (Emphasis added.) In our opinion, we noted that Like was con-viected of a Class B felony under Indiana Code Section 35-48-4-2(a), not under Indiana Code 35-50-2, and vacated the portion of the trial court's order imposing a $125.00 criminal costs fee. See Like, 760 N.E.2d at 1193.
The State acknowledges that a defendant cannot be convicted of a felony under Indiana Code 35-50-2, which governs felony sentencing provisions, but contends that the "spirit of the statute" requires a trial court to impose the fee when a defendant has been convicted of a felony. We agree with the State's contention but nevertheless conclude that the trial court abused its discretion in imposing a fee in excess of the statutory limit of $120.00. We therefore grant the State's petition for rehearing and remand with instructions to
Petition for rehearing granted and remanded with instructions.
