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Judges find man's sentence violates statute

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The Indiana Court of Appeals relied on a case from the state’s highest court to rule on whether a term of imprisonment for the purposes of Indiana Code 35-50-3-1(b) includes both the executed and suspended portions of a sentence.

Joey Jennings challenged his conviction of Class B misdemeanor criminal mischief and the sentence imposed by the Monroe Circuit Court – 180 days in jail with 150 suspended and 360 days of probation. Jennings didn’t think the state presented sufficient evidence to prove he was the person who slashed Cody Pope’s tire and scratched his truck. He also believed he was sentenced in excess of the statutory maximum sentence of 180 days because his terms of imprisonment and probation exceeded one year. This is prohibited under I.C. 35-50-3-1-(b).

The appellate court affirmed Jennings’ conviction in Joey Jennings v. State of Indiana, No. 53A01-1010-CR-541, finding that even though the evidence was circumstantial, it was enough to convict him. Witnesses heard the sound of air, like air brakes going off, and then Jennings’ car drove off quickly.

Regarding his sentence, the judges agreed with Jennings. They discussed several cases, including Beck v. State, 790 N.E.2d 520, 523 (Ind. Ct. App. 2003), that have construed the phrase “term of imprisonment,” but could not be controlling authority. Instead, they relied on Mask v. State, 829 N.E.2d 932 (Ind. 2005), to find that Jennings’ sentence needed to be revised.  The justices reasoned that incarceration under I.C. 35-50-1-2(c) doesn’t mean the period of executed time alone, and there is always the possibility that someone could have their parole or probation revoked and returned to prison.

“In other words, the imposition of a suspended sentence leaves open the real possibility that an individual will be ‘sent to incarceration for some period’ before being released from any penal obligation,” the Mask court wrote.

“We conclude that Jennings’s term of imprisonment for the purposes of Indiana Code section 35-50-3-1(b) includes not only the thirty-day executed portion of his sentence, but also the 150-day suspended term. Thus, the trial court’s imposition of a 360-day term of probation in addition to Jennings’s 180-day term of imprisonment caused Jennings to serve more than one year of combined imprisonment and probation, in violation of Indiana Code section 35-50-3-1(b),” wrote Judge Paul Mathias. “We therefore remand this cause to the trial court for a redetermination of Jennings’s period of probation, not to exceed 185 days.”


 

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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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