White v. State

560 N.E.2d 45, 1990 Ind. LEXIS 180, 1990 WL 136890
CourtIndiana Supreme Court
DecidedSeptember 20, 1990
Docket18S02-9009-CR-616
StatusPublished
Cited by19 cases

This text of 560 N.E.2d 45 (White v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White v. State, 560 N.E.2d 45, 1990 Ind. LEXIS 180, 1990 WL 136890 (Ind. 1990).

Opinions

PIVARNIK, Justice.

This cause comes to us on a petition to transfer from the Second District Court of Appeals. Petition to transfer is brought by Appellee State of Indiana following reversal by the Court of Appeals of the trial court's order revoking defendant's probation.

On October 14, 1987, White pleaded guilty, pursuant to a plea agreement, to Battery, a Class A misdemeanor. White received a one-hundred eighty (180) day suspended sentence, a fine of fifty-dollars ($50.00) and costs of one-hundred three dollars ($108.00). The record reflects that the trial court suspended sentence:

on the condition that defendant make restitution for medical expenses of victim and serves 10 days of Alternative Service. Defendant is to submit to supervised probation for a period of six months and is to have no further arrests or convictions.

Record at 21. These terms are also contained in the plea agreement signed by White. On November 5, 1987, White signed and received a copy of the Order of Rules of Supervised Probation and on the same date the court assessed probation user's fees against White.

On March 17, 1988, Phyllis Marlowe, a probation officer, filed a petition to revoke White's probation for failure to pay the costs and fine, failure to serve alternative sentence service, failure to pay restitution, [46]*46failure to pay probation user's fees, and for a new arrest. After a hearing on the petition held March 22, 1988, twenty-three days before probation was to expire on April 15, 1988, the court revoked White's probation. In its decision to revoke probation the court made the following remarks in open court:

I'm not concerned about the money involved here. What I'm concerned about is the fact that you don't even give the ten days alternative service.... So the court now revokes the suspended sentence. ...

Record at 104-05. The Court of Appeals found the sole reason given by the trial court for revoking probation was the failure to serve the ten days alternative service and, since the trial court did not include in its conditions of probation a completion deadline for the alternative service, that it was reversible error to revoke probation on that ground. White v. State, No. 18A02-8810-CR-359, at 3 (Ind.App. Feb. 15, 1990). The Court of Appeals seemed to reason that since the court did not designate a completion deadline, the defendant had reason to believe he had the entire probation term, in this case until April 15, 1988, to complete the alternative service. Therefore, according to the Court of Appeals, the court would have to await the passing of that date before it could enforce its order.

The resolution of this issue has appeared to be troublesome and in conflict, requiring resolution by this Court. We find the Court of Appeals did not properly resolve the issue in this case, so we vacate the opinion of the Court of Appeals and affirm the trial court.

We first note that to hold that a trial judge must wait until the term of probation has ended before he can find there has been a violation of its terms is wholly impractical because it fails to recognize what probation is and what it is designed to do. Probation is a sentencing tool to be used at the discretion of the sentencing judge to give the defendant an opportunity, in lieu of serving his time in a penal institution, to be free to live in society on condition that he conform his conduct in a manner prescribed by the judge. This gives the defendant an opportunity to show he is able to rehabilitate himself and become a useful member of society without serving his time in prison. Some of the conditions the judge might, and usually does, set, are that the defendant, in some manner, right the wrongs he has committed. Probation also gives the sentencing court an opportunity to observe the defendant's conduct during this period. If the defendant demonstrates he is not able to so conform his conduct, the court has the authority to revoke the probation and require the defendant to serve his time in a penal institution. However, once the term of probation has expired, the court loses all jurisdiction over the defendant and is powerless to enforce any conditions set even though it is aware the defendant has failed to meet any of them. Rode v. Baird (1924), 196 Ind. 335, 144 N.E. 415. Rode entered a guilty plea to a charge of manufacturing intoxicating liquor and was given a suspended six-month sentence contingent on his good conduct and his refraining from violation of the laws pertaining to intoxicating liquors. Fourteen months later, the sentencing court found Rode was convicted of another liquor violation during his term of probation and accordingly revoked his probation and sentenced him to six months at the Indiana State Farm. This Court reversed the trial court, holding that the court's jurisdiction to enforce its judgment of imprisonment expired at the end of the six months period and its assumption of power to act after that time was without authority of law. Id. at 339, 144 N.E. at 415-16 (citing Sutton v. State (1924), 194 Ind. 479, 143 N.E. 353). See also Sandy v. State (1986), Ind.App., 501 N.E.2d 486, 487.

Thus, if a court's authority to revoke probation is to have any meaning at all it must be interpreted to provide that the sentencing judge has an opportunity to look at the progress of the defendant before the expiration of his term and reassess his judgment of allowing defendant to remain on probation. Certainly it cannot be said the defendant is not aware of this. This is not to say that when a trial judge recognizes he made a mistake or omitted [47]*47something in the original probation order, he can take an illegal shortcut to right it. However, in interpreting the acts of the legislature, we must view them in continuity with the law as it existed giving meaning to the plain language used in those acts.

The relevant statutes governing probation in the instant cause are:

Whenever it places a person on probation, the court shall: (1) specify in the record the conditions of the probation.... I0 85-88-2-1(a).
When a person is placed on probation, the person shall be given a written statement of the conditions of probation. IC 85-88-2-2(b).
As conditions of probation, the court may require the person to do any combination of the following: ... (14) satisfy other conditions reasonably related to the person's rehabilitation. IC 835-88-2-2(a)(14).
A probation officer shall: (1) conduct prehearing and presentence investigations and prepare reports as required by law; (2) assist the courts in making pretrial release decisions; (8) assist the courts, prosecuting attorneys, and other law enforcement officials in making decisions regarding the diversion of charged individuals to appropriate non-criminal alternatives; (4) furnish each person placed on probation under his supervision a written statement of the conditions of his probation and instruct him regarding those conditions; (5) supervise and assist persons on probation consistent with conditions of probation imposed by court; (6) bring to the court's attention any modification in the conditions of probation considered advisable.... IC 11-13-1-3.

In his dissent in the instant case, Judge Conover reasoned:

The trial judge's order specifies White was placed on "supervised probation for a period of six months[,]" not unsupervised probation.

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White v. State
560 N.E.2d 45 (Indiana Supreme Court, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
560 N.E.2d 45, 1990 Ind. LEXIS 180, 1990 WL 136890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-state-ind-1990.