A man with multiple convictions received a partial reversal from the Court of Appeals of Indiana on Thursday after it found a petition to revoke his probation in one of those cases was untimely filed and ultimately an abuse of discretion.
Between November 2017 and May 2018, Jeramie M. Elston was charged in two separate causes with Class A misdemeanor domestic battery and Level 5 felony obstruction of justice, respectively.
In February 2019, Elston entered into a plea agreement covering both cases, under which he pleaded guilty as charged to domestic battery in Cause No. 39D01-1711-CM-991 and to the lesser-included offense of Level 6 felony obstruction of justice, with judgment of conviction entered as a Class A misdemeanor, in Cause No. 39D01-1805-F5-512.
Under that agreement, Elston was sentenced to consecutive terms of 180 days of jail, with credit for six days and the remaining 174 days suspended to probation, in CM-991and 365 days in jail, with credit for 56 days and the remaining 309 days suspended to probation for F5-512.
Several months later, however, two new felony battery charges were filed against Elston while he was out on probation.
During an initial hearing held for the two new cases, the probation department was granted “a 15 day hold for possible probation violation.” But when the state filed a petition to revoke probation in both CM-991 and F5-512 based on the new battery cases, neither a summons nor a warrant was issued and neither the state nor the Jefferson Superior Court took any action on the petition for nearly two years.
While the new battery cases were pending, the trial court set an Aug. 31, 2021, hearing in the probation-revocation matter, and summonses were issued to Elston directing him to appear. Elston moved to dismiss the petition to revoke, arguing that he had “completed the term of probation under both cases and should be discharged from probation as successful.”
The trial court denied the motion and, separately, Elston pleaded guilty in both of the new battery cases. When he renewed his motion to dismiss the petition, the motion was again denied and Elston was ordered to serve all of his suspended time in CM-991 and F5-512 for a total of 483 days.
The Court of Appeals partially reversed, finding that while the trial court was correct in denying Elston’s motion to dismiss in F5-512, it was wrong to do so in CM-991.
“The State responds that the probation department did not learn of the July 25 battery until the initial hearing for that crime on October 11, just eleven days before the petition to revoke was filed,” Judge Nancy Vaidik wrote. “Even if that is true, though, the forty- five-day period under Section 35-38-2-3(a)(2)(B) begins to run when ‘the state’ receives notice of the violation, not when the probation department receives notice.
“We agree with Elston that ‘the state’ received notice of the July 25 battery no later than August 9, when it charged Elston for that battery,” the appellate panel continued. “Therefore, the petition to revoke filed on October 22 — seventy-four days after August 9 — was untimely with regard to CM-991 and should have been dismissed as to that case.”
The case is Jeramie M. Elston v. State of Indiana, 22A-CR-316.