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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. 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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