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Opinions March 21, 2013

March 21, 2013
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Indiana Supreme Court
Anthony D. Dye v. State of Indiana
20S04-1201-CR-5
Criminal. On rehearing, reaffirms that a person convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the person was a “serious violent felon.” The state is not permitted to support Dye’s habitual offender finding with a conviction that arose out of the same res gestae that was the source of the conviction used to prove Dye was a serious violent felon. Affirms original opinion in all other respects. Justice Massa concurs in part and dissents in part with separate opinion.

Todd J. Crider v. State of Indiana
91S05-1206-CR-306
Criminal. Reverses in part the sentencing order that Crider’s habitual offender enhancement in a White County case be served consecutively to the habitual offender enhancement in a case from Tippecanoe County. Concludes that the waiver of the right to appeal contained in the plea agreement is unenforceable where the sentence imposed is contrary to law and the defendant did not bargain for the sentence.

Indiana Court of Appeals
Clark County Board of Aviation Commissioners v. Dennis Dreyer and Margo Dreyer as Co-Personal Representatives of the Estate of Margaret A. Dreyer
10A01-1206-PL-288
Civil plenary. Affirms denial of the Board of Aviation Commissioners’ Trial Rule 60(B) motion for partial relief from an $865,000 judgment in favor of Margaret Dreyer after the board instituted eminent domain proceedings. Because legal error may not be collaterally attacked, and the commissioners did not object to Dreyer’s July 2009 objections and did not raise the issue in the first appeal, the trial court did not err by denying their Trial Rule 60(B) motion.

Town of Cedar Lake v. Gina Alessia, Candi Reiling, Andrew Balkema, Individually and as Members of the Town of Cedar Lake Park Board
45A03-1207-PL-316
Civil plenary. Reverses summary judgment for the park board members on their claims of illegal termination, declaratory judgment on the validity of the ordinance and injunctive relief. Also reverses the reinstatement order regarding the park board members. The trial court erred when it used Dillon’s Rule to determine the scope of the town’s legal authority to dissolve the park board and Parks Department. The proper legal inquiry is based on Indiana’s Home Rule Act. Affirms the order that the law firm Austgen Kuiper & Associates P.C. may not continue to represent the park board and its members in any matters based on a current conflict of interest.

C.B. v. B.W.
49A02-1206-JP-539
Juvenile. Affirms order granting the father’s request to change the surname of C.D.B. in initial paternity proceedings over the mother’s objections. The trial court’s decision is not clearly against the logic and effect of the facts and circumstances before the court or contrary to law. The mother has not shown reversible error.

Marquis Shipp v. State of Indiana (NFP)
49A02-1204-PC-322
Post conviction. Affirms denial of petition for post-conviction relief.

Arturo Fuentes v. State of Indiana (NFP)
79A02-1208-CR-698
Criminal. Affirms sentence for Class A felony dealing in cocaine and Class C felony possession of cocaine.

Christina J. Epps v. State of Indiana (NFP)
05A02-1207-CR-673
Criminal. Affirms convictions and sentence for two counts of Class A misdemeanor battery and one count of Class B misdemeanor battery.

The Indiana Tax Court posted no decisions by IL deadline. The 7th Circuit Court of Appeals posted no Indiana decisions by IL deadline.

 

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  1. Hmmmmm ..... How does the good doctor's spells work on tyrants and unelected bureacrats with nearly unchecked power employing in closed hearings employing ad hoc procedures? Just askin'. ... Happy independence day to any and all out there who are "free" ... Unlike me.

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  3. 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.

  4. 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.

  5. 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.

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