ILNews

Justices: Belated appeals rule doesn’t apply to probation revocations

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Supreme Court has put its stamp of approval on an intermediate appellate panel’s ruling last year, finding that the state’s existing Post-Conviction Rule 2 that allows for belated appeals on certain criminal cases doesn’t apply to probation revocations.

In a two-page per curiam opinion in Edward Dawson v. State of Indiana, No. 49S02-1103-CR-176, the justices unanimously granted transfer on a Marion County case the Indiana Court of Appeals had decided Dec. 17, 2010.

Marion Superior Judge Robert Altice had imposed an eight-year suspended sentence with three years probation for the defendant, who’d pleaded guilty to conspiracy to commit robbery and carrying a handgun without a license. The judge later revoked his probation and sentenced him to six years after a probation violation, but he didn’t file a motion to correct error or any appeal notice within 30 days as required. Dawson said he later learned generally about his right to appeal after meeting a law clerk with the Indiana Youth Center, and eight months following the revocation order he asked for a belated appeal. Judge Altice allowed it “outright” and permitted a hearing, but confirmed the six-year sanction he’d ordered.

The Court of Appeals found that Post-Conviction Rule 2 is not available for belated appeals of probation revocation orders and dismissed the appeal, and now the justices have affirmed that decision.

“We agree with the Court of Appeals’ analysis that the sanction imposed when probation is revoked does not qualify as a ‘sentence’ under the Rule, and therefore Dawson is not an ‘eligible defendant,’” the per curiam opinion reads. ”Accordingly, we grant transfer and adopt and incorporate by reference the opinion of the Court of Appeals under Appellate Rule 58(A)(1).”

This is the first time the state’s highest court has explicitly determined whether and to what extent Post-Conviction Rule 2 applies to probation revocation orders, either by opinion or rule amendment even after the intermediate appellate court had decided that matter in Glover v. State, 684 N.E.2d 542, 543 (Ind. Ct. App. 1997).

Justices addressed PCR 2 and probation revocation hearings in Cooper v. State, 917 N.E.2d 667, 673 (Ind. 2009), but the court ruled that because Cooper didn’t petition for permission to file a belated notice of appeal, the case wasn’t an appropriate vehicle to resolve the question of whether probation revocation orders are appealable under PCR 2.

That question is now resolved.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  2. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  3. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  4. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

  5. Can I get this form on line,if not where can I obtain one. I am eligible.

ADVERTISEMENT