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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA man convicted of a misdemeanor marijuana offense must face the prospect of revocation of his probation even though the state didn’t file a petition until after his term of probation expired.
The Indiana Court of Appeals on Wednesday affirmed one of two probation revocation petitions filed by the state in Damien D. Murphy v. State of Indiana, 79A05-1709-CR-2319. Damien Murphy pleaded guilty to Class B misdemeanor possession of marijuana in Tippecanoe Superior Court on Oct. 11, 2016. That day, he was sentenced to 180 days suspended to probation, terms of which included obtaining a high school diploma and paying for court services within six months, among other things.
Murphy’s probation was to expire on April 10, 2017, and the trial court set a probation review hearing for May 25, 2017. At the hearing, the state filed the first of two petitions to revoke Murphy’s probation. The state contended Murphy had not completed all probation requirements, but the COA noted the transcript from the hearing was not part of the record on appeal.
On July 6, 2017, the state filed a second petition to revoke Murphy’s probation after he was charged with dealing in a narcotic drug, possession of a narcotic drug, resisting law enforcement, operating while intoxicated endangering a person, operating while intoxicated with a blood alcohol content of .08 percent or more and possession of marijuana.
Murphy moved to dismiss both petitions, which the trial court denied, prompting this interlocutory appeal. He argued both petitions were filed outside the time limits set out in Indiana Code § 35-38-2-3(a), and the Indiana Court of Appeals agreed in part, finding the second petition was untimely.
Judge Rudolph Pyle III wrote for the COA panel that concluded the first petition was filed as the statute provides, within 45 days of when the state has notice of a probation violation. The second petition was filed outside that window. The panel also found that tolling the provision of the revocation statute doesn’t apply to the facts of Murphy’s case.
“Because the trial court has authority pursuant to the revocation statute to hold a revocation hearing and to enter a determination on this timely-filed petition, the trial court did not abuse its discretion by denying Murphy’s motion to dismiss the First Probation Revocation Petition,” Pyle wrote.
“Because the first revocation petition was timely filed and the second revocation petition was not, we affirm the trial court’s denial of Murphy’s motion to dismiss the first revocation petition, reverse the trial court’s denial of Murphy’s motion to dismiss the second revocation petition, and remand for further proceedings on the first revocation petition,” he said.
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