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Statute doesn't authorize dismissal of charges

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Even if the Indiana Court of Appeals concluded the trial court violated statute by failing to set a juvenile delinquency hearing within the 60-day time limit, the appellate court doesn't believe the statute authorizes dismissal of the charges as the defendant argues.

In J.D. v. State of Indiana, No. 49A05-0901-JV-40, J.D. argued under Indiana Code Section 31-37-11-2(b), his charges for committing what would have been Class D felony theft and Class B misdemeanor criminal mischief if committed by an adult should have been dismissed because his hearing wasn't set until after a 60-day timeframe within the statute.

Section 2(b) says if a child is not in detention and a petition has been filed, a hearing must be commenced not later than 60 days, excluding weekends and legal holidays, after the petition is filed.

After the state filed the petition Aug. 11, 2008, that J.D. was a delinquent child, he was released to his parents on supervised home release. He was later placed with the Indiana Department of Correction in another cause. At a Sept. 8 conference, a denial hearing was scheduled for Dec. 2; J.D. didn't object to the date, which was more than 60 days after the petition was filed.

The Court of Appeals compared Section 2(b) to the speedy-trial provisions of Indiana Criminal Rule 4(C), using caselaw on the rule to help interpret the subsection. Because J.D. didn't object to the hearing set outside a 60-day time limit, he waived his rights under Indiana Code Section 31-37-11-2(b), the appellate court determined.

Even if he didn't waive his rights, it isn't clear under the statute that a dismissal would be warranted. The only section of Indiana Code Chapter 31-37-11 that calls for discharge is Section 9, which isn't applicable in the instant case. Section 7 says if the court fails to meet the applicable time limits, a child in detention will be released to a parent or guardian.

But when a child isn't in detention, Section 7 is silent. However, that doesn't mean a violation of 2(b) requires outright dismissal.

"To the contrary, we fail to see why dismissal would be inappropriate for a child who is in detention, but somehow appropriate for a child who is not," wrote Judge Paul Mathias. "Without clear statutory authorization, we cannot say that a violation of the sixty-day limit of Section 2(b) required the trial court to dismiss the allegations that J.D. was a delinquent child."

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  1. Uh oh, someone is really going to get their panti ... uh, um ... I mean get upset now: http://www.theguardian.com/us-news/2015/mar/31/arkansas-passes-indiana-style-religious-freedom-bill

  2. Bryan, stop insulting the Swedes by comparing them to the American oligarchs. Otherwise your point is well taken.

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  4. I need helping gaining custody of my 5 and 1 year old from my alcoholic girlfriend. This should be an easy case for any lawyer to win... I've just never had the courage to take her that far. She has a record of public intox and other things. She has no job and no where to live othe than with me. But after 5 years of trying to help her with her bad habit, she has put our kids in danger by driving after drinking with them... She got detained yesterday and the police chief released my kids to me from the police station. I live paycheck to paycheck and Im under alot of stress dealing with this situation. Can anyone please help?

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