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COA splits, reverses probation revocation

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The Indiana Court of Appeals was split today in its decision to reverse the revocation of a defendant's probation. The judges didn't agree that the probation revocation hearing comported with due process.

Judges Carr Darden and Margret Robb believed the circumstances surrounding Paul Davis' case were similar to that of Martin v. State, 813 N.E.2d 388 (Ind. Ct. App. 2004). In that case, the trial court revoked Martin's probation after he admitted being arrested and that charges were pending, but the state provided no evidence or the probable cause affidavit for the charges prior to the court finding he violated his probation. The appellate court overturned the revocation, finding the evidence was insufficient to support revoking his probation.

In Davis v. State, No. 49A04-0907-CR-379, Davis' attorney admitted at the probation revocation hearing that Davis had been arrested but didn't state what the allegations were. His attorney also told the judge "The agreement is twelve years DOC contingent also upon the fact that if he beats that Court Five case, we would be allowed to come back to have the twelve years revisited."

Just as in Martin, the state failed to provide evidence that Davis had committed a criminal offense. The trial court was unaware as to the specific allegations and Davis' attorney only admitted that Davis was arrested.

"As there was only an admission to an arrest without a probable cause finding and neither party entered the probable cause affidavit into evidence, we find that the probation revocation hearing denied Davis minimum due process," wrote Judge Darden.

The majority also rejected the state's argument that Davis wasn't entitled to due process rights because he admitted to violating his probation. But when the admission itself is insufficient to support a probation revocation, it doesn't render the procedural due process safeguards and evidentiary hearing unnecessary, wrote the judge.

In his dissent, Judge Paul Mathias acknowledged that an arrest, standing alone, doesn't support the revocation of probation, but Davis didn't just admit he had been arrested. He also referred to the agreement between Davis and the state that he agreed his probation would be revoked, but he would have the right to revisit the issue if he was acquitted on the pending charges.

"Here, Davis not only admitted to the historical fact that he had been arrested, his counsel also agreed that his probation would be revoked. Although Davis did not personally speak during the revocation hearing, his counsel's admission is binding on him," he wrote.

For these reasons, he would hold Davis wasn't denied due process and would uphold his probation revocation.

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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