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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. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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