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Supreme Court grants 3 transfers

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The Indiana Supreme Court granted three transfers Tuesday, including a case regarding the state's "non-suspension rule," Indiana Code Section 35-50-2-2(b)(1).

In Julie A. Gardiner v. State of Indiana, No. 08A02-0810-CR-874, the Indiana Court of Appeals determined in a case of first impression that the state's "non-suspension rule" in Indiana Code depends on the status of the prior criminal conviction at the time of sentencing for a subsequent conviction. Because Julie Gardiner's prior unrelated Class D felony conviction wasn't reduced to a Class A misdemeanor at the time she was sentenced for a later drug conviction, her 20-year sentence stands.

The majority ruled if the Hamilton County trial court had immediately reduced Gardiner's prior felony to the misdemeanor, the Carroll Circuit Court would have had the discretion to order a suspended sentence. Since the Hamilton trial court postponed the reduction, Gardiner still had the Class D felony conviction on her record when she was convicted and sentenced for the Class A felony dealing in methamphetamine.

The majority noted it was frustrated by a sentencing scheme that illogically limits a judge's discretion and invited the legislature to consider amending the statutes to provide more judicial discretion.

Judge Elaine Brown dissented on the grounds she wouldn't give the non-suspension rule such a strict interpretation as to tie the trial court's hands in suspending a minimum sentence when circumstances warrant a modification.

In Jimmie Smith v. Champion Trucking Co., Inc. No. 93A02-0808-EX-701, the Court of Appeals reversed the dismissal of Jimmie Smith's application for adjustment of claim with the Indiana Workers' Compensation Board. Smith should be allowed to proceed with his workers' compensation claim that was pending at the time of his settlement with the driver who struck his truck while he was working, the court ruled.

"Thus, Smith correctly observes that there may be some potential, in furtherance of the humane purposes of the Act, for some supplemental payment from an employer after the injured employee has recovered from a third-party tortfeasor an amount less than the 'apparent worker's compensation benefits' before the worker's compensation claim was resolved," wrote the court.

The high court also granted transfer to Eric P. Sibbing v. Amanda N. Cave, individually and as the mother and guardian of Mercy M. Cave, minor, No. 49A02-0802-CV-165.The appellate court ruled the trial court didn't err in allowing into evidence Cave's testimony about medical tests and the cause of her pain. Cave was injured in a car accident when Eric Sibbing's car slammed into the back of hers. Cave filed a negligence suit against Sibbing, who admitted fault.

The judges disagreed about whether the court erred in granting Cave's motion to strike portions of Sibbing's expert medical witness's testimony.

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  1. 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.

  2. 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?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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