Greer v. State, 57S03-9610-CR-653

• Court: Supreme Court of Indiana
• Citation: 685 N.E.2d 700
• Docket Number: No. 57S03-9610-CR-653,57S03-9610-CR-653
• Parties: Michael D. GREER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Decision Date: 16 October 1997

Page 700

685 N.E.2d 700 Michael D. GREER, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below). No. 57S03-9610-CR-653. Supreme Court of Indiana. Oct. 16, 1997.

Page 701

Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for Appellant.

Pamela Carter, Attorney General, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, for Appellee.

ON PETITION TO TRANSFER

SULLIVAN, Justice.

This case addresses whether the Court of Appeals has subject matter jurisdiction over a belated appeal from a trial court's denial of credit time following revocation of probation. We hold that it does not.

Background

In September of 1991, the trial court convicted defendant, Michael D. Greer ("Greer"), of two counts of Child Molesting, a class C felony under Ind.Code § 35-42-4-3(c)(1988), and sentenced Greer to two concurrent eight year terms. The Court of Appeals affirmed Greer's convictions. Greer v. State, 669 N.E.2d 751 (Ind.Ct.App.1996).

On October 4, 1993, the trial court issued an order granting Greer's Petition for Modification of Sentence, suspending the remainder of Greer's sentence, and placing him on probation/house arrest. On April 29, 1994, acting on its own motion, the trial court modified Greer's sentence, placing him on work release in the custody of a community corrections program for the remainder of his sentence. In May of that year, Greer's probation officer reported that Greer had violated the terms of his probation and work release by consuming alcohol. After a hearing on May 24, 1994, the trial court revoked Greer's probation and reinstated the suspended portion of his sentence.

Later that year, Greer again petitioned the trial court for sentence modification. On October 13, 1994, the trial court granted Greer's petition by suspending the remainder of his sentence and placing him on probation with the condition of home detention. On January 6, 1995, Greer's probation officer filed a probation violation report stating that (1) Greer had consumed alcohol in violation of the terms of his probation and (2) Greer's father, with whom Greer resided as a term of his home detention, no longer wanted Greer in the home. The trial court held an evidentiary hearing on March 7, 1995, and found that Greer had violated the terms of his probation.

The trial court then revoked Greer's probation and ordered him to serve the remainder

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of his sentence at the Indiana Department of Correction. Greer filed a pro se motion for credit time for the time he spent on home detention from October 5, 1993, through April 29, 1994, and from October 13, 1994, through January 6, 1995. On March 14, 1995, the trial court denied Greer's motion. Greer did not file a timely praecipe. On June 12, 1995, Greer filed, and the trial court granted, a petition for permission to file a belated praecipe to appeal the trial court's denial of credit time.

In its appellate brief filed in response to Greer's brief, the State for the first time raised the issue of whether the Court of Appeals had jurisdiction to entertain Greer's appeal. The Court of Appeals held that by waiting until filing its appellate brief to object to Greer's filing of a belated praecipe, the State waived its right to challenge the court's jurisdiction. However, the Court of Appeals went on to decide the issues raised by Greer against him on the merits.

Greer petitioned this Court to transfer and on October 15, 1996, we granted transfer.

Discussion

Upon transfer, this Court has jurisdiction over all issues in an appeal as though originally filed in this court. Ind. Appellate Rule 11(B)(3). Occasionally, we will decide an issue not raised in the petition to transfer contrary to the result reached by the Court of Appeals. See Savage v. State, 655 N.E.2d 1223, 1224 (1995); Kimberlin v. DeLong, 637 N.E.2d 121, 123 (1994), cert. denied, 516 U.S. 829, 116 S.Ct. 98, 133 L.Ed.2d 53 (1995). See also Lingler v. State, 644 N.E.2d 131 (Ind.1994). Such is the case here where we conclude that the Court of Appeals erred in holding that the State waived its right to challenge jurisdiction by failing to object to Greer's belated praecipe prior to filing its appellate brief.

I

The State contends that the trial court lacked authority to grant Greer permission to file a belated praecipe because Indiana's Rules of Procedure for Post-Conviction Remedies allow the trial court to permit a belated praecipe only for direct appeal of a conviction and, therefore, that the Court of Appeals lacked jurisdiction to hear Greer's appeal. We agree.

Under the Indiana Rules of Appellate Procedure, a party initiates an appeal by filing a praecipe in the trial court within thirty days of a final judgment or an appealable final order. Ind.Appellate Rule 2(A). Failure to file the praecipe within thirty days results in forfeiture of the right to appeal. Id. However, we have granted leave under the rules governing post-conviction relief from criminal convictions for belated praecipes to be filed in limited circumstances. Ind.Post-Conviction Rule 2(1).

Prior to 1994, P-C.R. 2(1) provided that a defendant convicted after a trial or plea of guilty could petition the trial court for permission to file a belated praecipe. P-C.R. 2(1), Indiana Rules of Court 1993. This provision was subject to the construction that it covered all proceedings of a criminal nature, not just direct appeals. As of January 1, 1994, P-C.R. 2(1) was amended to read: "Where a defendant convicted after a trial or plea of guilty fails to file a timely praecipe, a petition for permission to file a belated praecipe for appeal of the conviction may be filed with the trial court...." P-C.R. 2(1), Indiana Rules of Court 1994 (emphasis added).

The 1994 amendments transformed P-C.R. 2(1) into a...