Kimberly Heaton will have a new hearing on whether she violated the terms of her probation when she was charged with Class D felony theft. The Indiana Supreme Court vacated her probation revocation because a Madison Superior judge may have used the wrong legal standard to find the violation.

Heaton was on probation in September 2009 after pleading guilty to Class D felony receiving stolen property when she was arrested and charged with theft. The state filed a notice of probation alleging three technical violations and that she committed a new criminal offense. Madison Superior Judge Dennis D. Carroll, using the probable cause standard, found she violated her probation and ordered she serve 18 months of her previously suspended sentence.

In Kimberly Heaton v. State of Indiana, 48S02-1206-CR-350, Heaton argued that the trial court should have used the preponderance of evidence standard when determining if she committed a new criminal offense. The Indiana Court of Appeals agreed with Heaton, as did the justices.

The state claimed that caselaw shows the proper standard is probable cause, citing Cooper v. State, 917 N.E.2d 667 (Ind. 2009). But the only issue properly before the justices in Cooper was whether the trial court erred in denying his motion to reconsider, Chief Justice Brent Dickson pointed out. The Cooper court found that probable cause would be needed to revoke probation.

Since 1976, the Indiana Code has said that the state must prove a violation by a preponderance of the evidence, and “To the extent that Cooper may be read to permit proof only by probable cause, it is overruled,” Dickson wrote.

In Heaton’s case, the justices found the record unclear as to which standard Carroll used because he referenced the probable cause standard and claimed the court found by a preponderance of the evidence that Heaton committed the crime. They vacated the probation revocation and order she serve a portion of her previously suspended sentence and sent the case back to Madison Superior Court. There, Carroll will hold a new determination of whether Heaton violated the conditions of her probation by a preponderance of the evidence pursuant to I.C. 35-38-2-3(e) (2008), and if so, what the appropriate sanction is.