Trial court used wrong legal standard in revoking probation

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The Indiana Court of Appeals has ordered a trial court to use the proper legal standard to determine whether a woman violated her probation when she was arrested for theft. The trial court used a probable cause standard instead of the legal standard of a preponderance of evidence.

In Kimberly Heaton v. State of Indiana, No. 48A02-1104-CR-404, Kimberly Heaton argued that Madison Superior Judge Dennis D. Carroll used the incorrect legal standard – probable cause – when revoking her probation and ordering her to serve 18 months of her previously suspended sentence in prison. Heaton was on probation after pleading guilty to Class D felony receiving stolen property. She was later arrested for Class D felony theft and the state filed a petition to revoke her probation.

An evidentiary hearing was held on March 8, 2011, but Heaton was unable to attend due to pregnancy complications. A week later, she was able to testify. The trial court found her to be in violation of four terms of her probation.

Appellate Judge Nancy Vaidik noted that courts had interpreted Indiana’s probation revocation statute before 1983 as requiring a probable cause determination for determining whether a new offense was committed. That statute was revised in 1983 and now says that probation violations must be proven by a preponderance of the evidence. Some cases post-1983 have relied on cases that cite the old statute, but those cases are relying on out-of-date law.

“We note that today the correct legal standard in determining if a person on probation has committed another offense is a preponderance of the evidence, as is articulated in the current Indiana Code section 35-38-2-3(e),” wrote Vaidik.

The trial court here used the wrong legal standard, so the appellate court couldn’t be sure if the judge would have imposed the same 18-month sentence. The COA instructed the trial court to use the preponderance of the evidence legal standard to determine whether Heaton violated her probation with the new arrest and resentence her in light of the new findings.



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  1. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.