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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 App. 1997), and the Indiana Supreme Court has never superseded that opinion by Rule amendment, he continued.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. 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.

  2. 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.

  3. 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.

  4. 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.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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