Dawson v. State
| Decision Date | 18 July 2001 |
| Docket Number | No. 48A05-0011-PC-498.,48A05-0011-PC-498. |
| Citation | 751 N.E.2d 812 |
| Parties | Lance Reed DAWSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Anthony Lawrence, Anderson, IN, Attorney for Appellant.
Stephen R. Carter, Attorney General of Indiana, Timothy W. Beam, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Defendant-Appellant Lance Reed Dawson (Dawson) appeals the revocation of his probation. We reverse.
Dawson raises one issue which we state as: whether the trial court erred by revoking Dawson's probation based upon an incident that occurred subsequent to his probationary period.
In 1990, Dawson pleaded guilty to burglary, a Class B felony. He was sentenced to six years, all of which were suspended, and he was placed on three years of probation. In September 1992, his probation officer filed with the court a notice of probation violation alleging that Dawson had failed to comply with recommendations of the mental health center and failed to abstain from illicit drugs in that he had failed a drug test in August 1992. A hearing was set for December 14, 1992 but was continued due to the unavailability of the State's witness. The court subsequently re-set the hearing for January 25, 1993. On January 6, 1993, the hearing was again continued upon the State's motion and was re-set for February 22, 1993. On February 5, 1993, Dawson moved the court to continue the hearing. The court granted Dawson's motion but never re-set the hearing date. Seven years later, on June 12, 2000, the State filed an amended notice of probation violation alleging that Dawson's probationary period had been tolled by the filing of the 1992 notice of probation violation. The amended notice also alleged that Dawson had violated his probation by committing new criminal offenses in November 1998 and in May 2000; by not keeping probation informed of his address; by not complying with treatment recommendations and not providing written verification of compliance; and by not abstaining from the use of illicit drugs as alleged in the 1992 violation notice. Following a hearing on October 23, 2000, the trial court revoked Dawson's probation and sentenced him to six years. It is from this decision that Dawson now appeals.
Dawson contends that the trial court improperly revoked his probation based upon the allegation that he committed a new criminal offense in May 2000. He asserts that his probationary period ended in 1993 and that, therefore, he was not on probation when this new offense occurred.
A probation revocation hearing is in the nature of a civil proceeding, and the decision to revoke is a matter within the sound discretion of the trial court. C.S. v. State, 735 N.E.2d 273, 276 (Ind.Ct.App. 2000),trans. denied. The State must prove the alleged violation only by a preponderance of the evidence. Id; Ind.Code § 35-38-2-3(e). We will affirm a decision to revoke probation if there is substantial evidence of probative value to support the trial court's conclusion that a probationer has violated any condition of probation. Id.
A review of the record in the present case reveals that the court based its revocation upon Dawson's admission to driving after he had been drinking in May 2000. Based upon this Court's decision in Slinkard v. State, 625 N.E.2d 1282 (Ind.Ct. App.1993), we find that the trial court improperly revoked Dawson's probation. In Slinkard, as in the case at bar, the State filed a petition to revoke probation for violations occurring during the probationary period. The hearing was continued a number of times and was finally held on February 19, 1993, after the probationary period had ended one year earlier on February 5, 1992. In the meantime, the State had filed an amended petition alleging violations on March 19, 1992. The trial court revoked Slinkard's probation based upon the alleged violations occurring on March 19, 1992 and found that Slinkard had not violated his probation during the original probationary period. This Court reversed the revocation of Slinkard's probation stating that a trial court "may not revoke probation for events occurring after the original term of probation." Id. at 1284.
In that opinion, we also addressed the tolling issue and cited Ind.Code § 35-38-2-3(c) which provides that "[t]he issuance of a summons or warrant tolls the period of probation until the final determination of the charge." As we explained in Slinkard, the purpose of this code section is to grant a trial court power to revoke probation and order a person returned to jail when it determines that such person violated probation, even though the disposition regarding that violation occurs after the original term of probation has expired. The Court further discussed that because Slinkard was found not to have violated his original term of probation, the filing of the petition during his original term did not toll, or extend, his probationary term through the date of disposition on the petition....
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