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PCR 2 not available for probation revocation orders

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Post-Conviction Rule 2 is not available for belated appeals of probation revocation orders, the Indiana Court of Appeals concluded.

The trial court allowed Edward Dawson leave to file a belated notice of appeal of the order revoking his probation. Dawson didn’t file a motion to correct error or a notice of appeal within 30 days of his revocation.

The Indiana Supreme Court addressed Post-Conviction Rule 2 and probation revocation hearings in Cooper v. State, 917 N.E.2d 667, 673 (Ind. 2009), in which Cooper didn’t petition for permission to file a belated notice of appeal, but later asked the court to reconsider its revocation decision. The justices ruled because Cooper didn’t petition for permission to file a belated notice of appeal, the case wasn’t an appropriate vehicle to resolve the question of whether probation revocation orders are appealable under PCR 2.

In Edward Dawson v. State of Indiana, No. 49A02-1001-CR-155, the appellate judges delved into the history of PCR 2 and agreed with the state that Dawson isn’t an eligible defendant under the rule.

The issue in the instant case is whether the imposition of the sanction for revoking his probation qualifies as a sentence under PCR 2. The rule defines eligible defendants as those who possessed the right but failed to file a timely direct appeal of a conviction or sentence after a trial or guilty plea.

“We are not unsympathetic to the policy considerations attendant to permitting belated appeals of probation revocation orders where the diligence and fault criteria are met. Nevertheless, the Indiana Supreme Court has strictly construed Post-Conviction Rule 2 in Howard and Greer, and continues to limit its reach,” wrote Judge L. Mark Bailey.

Although the Indiana Supreme Court has never explicitly determined whether and to what extent Post-Conviction Rule 2 applies to probation revocation orders, the Court of Appeals decided that matter in Glover v. State, 684 N.E.2d 542, 543 (Ind. Ct. App. 1997), and the Indiana Supreme Court has never superseded that opinion by Rule amendment, he continued.  

Judge Bailey noted the appellate court is aware of the need for clarification and welcomes it, but the current rendering of PCR 2 doesn’t include probation revocation orders. They dismissed the appeal.

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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