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Trial court couldn't modify man's sentence

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Finding the addition of the term "imposed" to an amendment of Indiana Code Section 35-38-1-17(a) in 2005 to be critical in a man's appeal of his sentence, the Indiana Court of Appeals affirmed the denial of his motion to modify his second sentence.

Dale Redmond was convicted of various burglary, robbery, and battery charges in 1998 and sentenced to serve 20 years for robbery and two battery convictions and then eight years for his last county of battery. That sentence was ordered be served consecutively to the robbery sentence.

In February 2008, Redmond filed a motion to modify his sentence pursuant to Indiana Code Section 35-38-1-17(a), stating he had just begun serving his eight-year sentence for battery and was within the one-year period in which to file a statutory motion to modify without the approval of a prosecutor. The trial court denied his motion, ruling it was without authority to modify his sentence.

In Dale Redmond v. State of Indiana, No. 49A02-0808-CR-761, the Court of Appeals examined the statute at issue in the case as well as Liggin v. State, 665 N.E.2d 618 (Ind. Ct. App. 1996), which Redmond used to support his motion.

At the time Liggin was decided, the statute didn't mention the imposition of a sentence, only that a court may modify a sentence after a defendant begins serving his sentence. Based on the statute at the time, the Court of Appeals held Liggin hadn't yet begun serving his second sentence at the time the trial court purported to modify it, so it was without authority to do so.

Since Liggin, the statute has been amended to allow a defendant 365 days after he begins serving his sentence to file a motion to modify, wrote Judge Nancy Vaidik.

"We find the amendment of Indiana Code § 35-38-1-17(a) in 2005 to include the term 'imposed' to be critical," she wrote.

The triggering date is the date the trial court imposes the sentences and reading the statute that way furthers the state's legitimate interest in the finality of the judgments and an ordered procedure for the modification of sentences.

"Allowing a defendant to file a motion to modify a sentence each time he begins a new sentence is inconsistent with the legislature's 2005 amendment of the statute to add back in the term 'imposed,' which denotes a one-time event, and would give the defendant several attempts to modify his sentence, thereby defeating finality," the judge wrote.

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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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