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COA to trial judges: enter restitution orders at sentencing

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The Indiana Court of Appeals sent a case in ‘procedural limbo’ back to trial court to enter a restitution order within 30 days, which will allow the defendant to appeal his aggravated battery conviction. The appellate judges also advised trial courts on the pitfalls of postponing ordering restitution when ordering a sentence.

Bobby Alexander was convicted of two counts of Class B felony aggravated battery for shooting Robert Seger and Ryan Little. At the sentencing hearing, the state sought restitution for Seger; Alexander asked for the restitution hearing to occur at a later date so his counsel could look into discounts Seger may have received on his medical bills. The trial court had not entered a restitution order when it sentenced Alexander to time in the Department of Correction.

Alexander filed his appeal regarding the conviction pertaining to Little while his restitution hearing was still pending. Restitution still has not been ordered.

The state sought dismissal of the appeal, which the COA’s motions panel denied.

In Bobby Alexander v. State of Indiana, 49A04-1207-CR-351, the state asked the appellate court to overturn its motions panel’s decision. The state argued based on Haste v. State, 967 N.E.2d 576 (Ind. Ct. App. 2012), that Alexander does not have a final judgment under Appellate Rule 2(H). Although “reluctant” to overrule orders decided by its motions panel, the COA pointed out that the trial court has not entered a restitution order, so it dismissed the appeal.

“Given the procedural limbo in which this case stands, we remand this case to the trial court with instructions for the trial court to enter a restitution order within thirty (30) days of this Court’s opinion,” Judge Rudy Pyle III wrote. After the restitution order is entered, Alexander then can file a notice to appeal.

Pyle noted that it’s common for trial courts to impose a sentence while taking restitution under advisement.

“This practice, however, can prove to be problematic—as it has in this case—because it delays a defendant’s ability to begin an appeal due to the fact that a final order has not been entered. Consequently, this practice would affect a trial judge’s ability to advise a defendant of his appellate rights,” he explained. “Furthermore, when a trial court enters a sentence but takes restitution under advisement, the trial court is still subject to the ninety (90) day time limitation in Indiana Trial Rule 53.2 ('the lazy judge rule'), which is applicable to criminal proceedings pursuant to Indiana Criminal Rule 15. Therefore, the best practice would be for trial courts to enter an order of restitution at the same time as sentencing.”

 

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  1. My daughters' kids was removed from the home in March 2015, she has been in total compliance with the requirements of cps, she is going to court on the 4th of August. Cps had called the first team meeting last Monday to inform her that she was not in compliance, by not attending home based therapy, which is done normally with the children in the home, and now they are recommending her to have a psych evaluation, and they are also recommending that the children not be returned to the home. This is all bull hockey. In this so called team meeting which I did attend for the best interest of my child and grandbabies, I learned that no matter how much she does that cps is not trying to return the children and the concerns my daughter has is not important to cps, they only told her that she is to do as they say and not to resist or her rights will be terminated. I cant not believe the way Cps treats people knowing if they threaten you with loosing your kids you will do anything to get them back. My daughter is drug free she has never put her hands on any of her children she does not scream at her babies at all, but she is only allowed to see her kids 6 hours a week and someone has to supervise. Lets all tske a stand against the child protection services. THEY CAN NO LONGER TAKE CHILDREN FROM THERE PARENTS.

  2. Planned Parenthood has the government so trained . . .

  3. In a related story, an undercover video team released this footage of the government's search of the Planned Parenthood facilities. https://www.youtube.com/watch?v=ZXVN7QJ8m88

  4. Here is an excellent movie for those wanting some historical context, as well as encouragement to stand against dominant political forces and knaves who carry the staves of governance to enforce said dominance: http://www.copperheadthemovie.com/

  5. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

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