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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 Some cases post-1983 have relied on cases that cite the old statute, but those cases are relying on out-of-date law.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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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