ILNews

Judges have flexibility on probation violations

Michael W. Hoskins
January 1, 2007
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If someone violates their probation, trial courts have the authority to modify a part of those probation terms and can add new conditions as they see necessary.

The Indiana Supreme Court ruled today in Russell Prewitt v. State of Indiana, No. 10S04-0707-CR-294, arising out of Prewitt's previous attempted cocaine possession conviction and subsequent probation starting in mid-2005. The state moved to revoke his probation twice within four months for alleged violations, and the trial court determined Prewitt had violated the probation. Clark Superior Judge Cecile Blau ordered that Prewitt serve two years of his previously suspended six-year sentence and that he receive post-incarceration treatment at Richmond State Hospital as a new condition of probation.

On appeal, Prewitt argued the trial court didn't have the authority to both order a portion of the previously suspended sentence and to modify the conditions. He relied on the word "or" within Indiana Code 35-38-2-3(g), which spells out the three options courts have in dealing with probation violations by continuing probation without modifying for enlarging the conditions; extending that period up to a year; "or" ordering execution of all or part of the sentence suspended at initial sentencing.

Supreme Court justices cited past caselaw and legislative intent from other statutes in determining what's allowed.

"We cannot postulate a reason the legislature would grant trial courts discretion to combine conditions when first placing a defendant on probation but not when sentencing a defendant after a probation violation," Chief Justice Randall T. Shepard wrote. "We do not perceive the word 'or' in this statute as reflecting a legislative decision to put revocation decisions in a straightjacket."

The court noted judicial flexibility serves the public interest by giving judges the ability to order sentences they deem to be the most effective and appropriate for individuals.

Justices also determined that Prewitt's sentence was not an abuse of discretion by the trial judge and affirmed the trial court judgment.
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  2. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  3. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  4. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  5. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

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