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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 App. 1997), and the Indiana Supreme Court has never superseded that opinion by Rule amendment, he continued.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. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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