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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. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  2. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  3. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  4. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

  5. Can I get this form on line,if not where can I obtain one. I am eligible.

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