Alexander v. State
| Decision Date | 10 May 2013 |
| Docket Number | No. 49A04–1207–CR–351.,49A04–1207–CR–351. |
| Citation | 987 N.E.2d 182 |
| Parties | Bobby ALEXANDER, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Victoria L. Bailey, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Bobby Alexander (“Alexander”) attempts to appeal one of his two convictions, following a jury trial, for Class B felony aggravated battery.
We dismiss this appeal and remand.
Whether this appeal should be dismissed because the order from which Alexander is attempting to appeal is not a final judgment.
Alexander was charged with two counts of Class A felony attempted murder and two counts of Class B felony aggravated battery after he used a semiautomatic rifle to shoot a car containing four individuals. As a result of the shooting, Alexander injured two of the individuals, Robert Seger (“Seger”) and Ryan Little (“Little”). A jury trial was held in June 2012, and the jury found Alexander guilty of the two Class B felony aggravated battery charges and not guilty of the two Class A felony attempted murder charges.
On June 20, 2012, the trial court held a sentencing hearing. During the hearing, the State requested restitution in the amount of $96,674.53 for Seger and introduced copies of the Seger's medical bills. Alexander's counsel asked the trial court if it could conduct a restitution hearing at a later date because counsel wanted to “follow up” on “discounts” for Seger's medical bills. (Tr. 579). The trial court granted Alexander's request and stated that it would allow Alexander to look into any insurance write-offs or self-pay discounts and would allow the parties to work out the issue. Alexander indicated that he waived his right to be at any future restitution hearing, and the trial court stated that it would set a restitution hearing “in a couple of weeks[.]” (Tr. 637). Thus, the trial court did not enter a restitution order but did sentence Alexander on his two convictions. The trial court imposed a six (6) year executed sentence for Alexander's Class B felony aggravated battery conviction relating to Little and imposed an eight (8) year sentence with six (6) years executed and two (2) years suspended to probation for Alexander's Class B felony aggravated battery conviction relating to Seger. The trial court ordered the sentences to be served consecutively at the Department of Correction.
On June 29, 2012, the State filed a motion for a hearing on restitution. The trial court granted the motion and set the hearing for July 16, 2012. Meanwhile, on July 11, 2012, Alexander commenced an appeal of his conviction and filed a notice of appeal. On July 16, 2012, the trial court held a hearing but reset the restitution hearing for August 7, 2012. Thereafter, the Notice of Completion of Clerk's Record was filed for this appeal on July 26, 2012. On August 7, 2012, the trial court held a hearing and indicated that it would reschedule the restitution hearing “at a later date.” (CCS at 27). 1 From the record before us on appeal, there is nothing to indicate that the trial court has entered a restitution order or has held or scheduled a restitution hearing.
Nevertheless, on November 26, 2012, Alexander filed his Appellant's Brief, raising a sufficiency challenge to only one of his convictions—the aggravated battery conviction as to Little—and arguing that there was insufficient evidence that Little's injury created a substantial risk of death.
Thereafter, the State filed a motion to dismiss the appeal, arguing that this Court does not have jurisdiction because the trial court had not resolved the issue of restitution prior to Alexander's filing of his notice of appeal. The State relied on this Court's recent opinion in Haste v. State, 967 N.E.2d 576 (Ind.Ct.App.2012), in which this Court sua sponte dismissed the defendant's appeal where the trial court entered sentencing but took the issue of restitution under advisement. The Haste Court explained that because “the requirement that a defendant pay restitution is as much a part of a criminal sentence as any fine or other penalty” and because the trial court had not ruled on restitution, the order imposing sentence was not a final appealable order under Appellate Rule 2(H). Haste, 967 N.E.2d at 576 (). In response to the State's motion to dismiss, Alexander “concede[d] that Haste says what the State says it says” but argued that Haste was “wrongly decided.” (Alexander's Objection at 3). On February 4, 2013, this Court's motions panel, in a 3–0 decision, denied the State's motion to dismiss.
The State subsequently filed its Appellee's Brief. The State did not address Alexander's sufficiency argument; instead, the State asked this Court to reverse the motions panel's ruling. The State argued that, under Haste, Alexander's appeal should be dismissed because he does not have a final judgment under Appellate Rule 2(H). Alexander then filed a motion for oral argument, asking this Court to address the issue of whether this appeal should be dismissed. We will address the issue below.2
Because the issue is dispositive, we address the State's argument that we should overrule the motions panel's decision and that this appeal should be dismissed for lack of appellate jurisdiction. “ ‘It is well established that we may reconsider a ruling by the motions panel.’ ” Treacy v. State, 953 N.E.2d 634, 636 n. 2 (Ind.Ct.App.2011) (), trans. denied. Although we are “reluctant” to overrule orders decided by our motions panel, we have “inherent authority to reconsider any [motions panel] decision” while an appeal remains pending. Id. ()
Appellate Rule 9 requires that a party initiate an appeal by filing a notice of appeal within thirty (30) days of a “Final Judgment.” Appellate Rule 2(H)(1) provides that a “final judgment” is one that “disposes of all claims as to all parties.” In Haste, this Court explained that an order of restitution is part of a criminal sentence. Haste, 967 N.E.2d at 576. The Haste Court held that because the trial court indicated that the issue of restitution was under advisement, the trial court's sentencing “order did not completely dispose of all sentencing issues” and was not a final judgment under Rule 2(H). Id. at 576–77.See also Wilson, 688 N.E.2d at 1295 (); Kotsopoulos, 654 N.E.2d at 46 ().
Here, the State was prepared at the sentencing hearing with its request for restitution. Specifically, the State introduced copies of the Seger's medical bills and requested that that the trial court order Alexander to pay restitution in the amount of $96,674.53 for Seger's medical costs. Alexander, however, requested the trial court to delay the entry of a restitution order so that he could investigate possible “discounts” for Seger's medical bills. (Tr. 579). The trial court granted Alexander's request to take restitution under advisement and to hold a restitution hearing at a later date.
Now, Alexander is attempting to appeal one of his two convictions, but we have nothing in the record to indicate that the trial...
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