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Probation Violation Dismissed - Clark v. State of Indiana

On December 5, 2011, the Indiana Court of Appeals issued a decision in the case of Clark v. State. The issue in the case was whether the trial Court improperly denied the Defendant's Motion to Dismiss a Notice of Probation Violation

In May 2005, Clark was convicted of Aiding, Inducing or Causing Forgery, a Class C Felony, and Theft, a Class D felony, in the Madision Circuit Court. He was given a suspended sentence and placed on probation. Clark's probation was subsequently transferred to Tippecanoe County. At the time of the probation transfer, his probation expiration date was listed as January 27, 2011, but because of credit time, his probation was actually set to expire on November 29, 2010.

In November 2010, Madision County requested an update on Clark's probation status. On January 26, 2011, a probation officer from Tippecanoe County e-mailed Madision County's probation office, notifying them that Clark's case had been closed in 2007 and that he was currently on probation in Tippecanoe County for two (2) other cases.

On February 7, 2011, Madision County filed a Notice of Probation Violation (based on the new offenses in Tippecanoe County) with the Madison Circuit Court. At the probation violation hearing, Clark moved to dismiss the Notice of Probation Violation because it was not timely filed. The trial court determined that the notice was timely filed. Clark then filed his appeal.

Indiana section 35-38-2-3 states:

(a) The court may revoke a person’s probation if:

(1) the person has violated a condition of probation during the
probationary period; and
(2) the petition to revoke probation is filed during the probationary
period or before the earlier of the following:
(A) One (1) year after the termination of probation.
(B) Forty-five (45) days after the state receives notice of the
violation.
(Emphases added).

The Court of Appeals determined that Tippecanoe County (the receiving court for probation purposes) had knowledge of the probation violations because the new offenses occurred in Tippecanoe County. The Court of Appeals held that notice to a receiving Court is notice to the sentencing Court and that the filing of the Notice of Probation Violation was not timely made.

Probation violations, whether from Felony or Misdemeanor convictions can lead to incarceration. If you, a friend or family member is facing a probation violation, contact Gregory A. Miller, a Fort Wayne Criminal Defense Lawyer at (260) 833-7249.