ILNews

Trial court used wrong legal standard in revoking probation

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals has ordered a trial court to use the proper legal standard to determine whether a woman violated her probation when she was arrested for theft. The trial court used a probable cause standard instead of the legal standard of a preponderance of evidence.

In Kimberly Heaton v. State of Indiana, No. 48A02-1104-CR-404, Kimberly Heaton argued that Madison Superior Judge Dennis D. Carroll used the incorrect legal standard – probable cause – when revoking her probation and ordering her to serve 18 months of her previously suspended sentence in prison. Heaton was on probation after pleading guilty to Class D felony receiving stolen property. She was later arrested for Class D felony theft and the state filed a petition to revoke her probation.

An evidentiary hearing was held on March 8, 2011, but Heaton was unable to attend due to pregnancy complications. A week later, she was able to testify. The trial court found her to be in violation of four terms of her probation.

Appellate Judge Nancy Vaidik noted that courts had interpreted Indiana’s probation revocation statute before 1983 as requiring a probable cause determination for determining whether a new offense was committed. That statute was revised in 1983 and now says that probation violations must be proven by a preponderance of the evidence. Some cases post-1983 have relied on cases that cite the old statute, but those cases are relying on out-of-date law.

“We note that today the correct legal standard in determining if a person on probation has committed another offense is a preponderance of the evidence, as is articulated in the current Indiana Code section 35-38-2-3(e),” wrote Vaidik.

The trial court here used the wrong legal standard, so the appellate court couldn’t be sure if the judge would have imposed the same 18-month sentence. The COA instructed the trial court to use the preponderance of the evidence legal standard to determine whether Heaton violated her probation with the new arrest and resentence her in light of the new findings.

 

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. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

ADVERTISEMENT