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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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  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

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  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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