Jaynes v. State

• Decision Date: 08 July 1982
• Docket Number: No. 1-481A152,1-481A152
• Citation: 437 N.E.2d 137
• Parties: Timothy JAYNES, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 137

437 N.E.2d 137

Timothy JAYNES, Defendant-Appellant, v.STATE of Indiana, Plaintiff-Appellee.

No. 1-481A152.

Court of Appeals of Indiana First District.

July 8, 1982.

Susan K. Carpenter, Public Defender, M. E. Tuke, Deputy Public Defender, Indianapolis, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Presiding Judge.

STATEMENT OF THE CASE

Timothy Jaynes appeals from a judgment revoking his probation and ordering him to serve the remainder of the sentence.We previously remanded this case to the trial court for a statement of the trial court's reasons and the evidence relied upon for revoking probation.¹Having been supplied with such a statement, we now determine the issue of the sufficiency of the evidence to support the judgment of revocation.We affirm.

FACTS

Jaynes was sentenced on August 27, 1979, to the Indiana Department of Correction for a term of forty (40) months upon his plea of guilty to attempted theft.On December 12, 1979, pursuant to Ind.Code Sec. 35-4.1-4-18, the court modified Jaynes's sentence by suspending further execution thereof and placing him on "shock probation" for a period of one (1) year.No terms or conditions of probation were specified in the order.On November 6, 1980, a petition for revocation of probation was filed alleging that Jaynes, on August 12, 1980, had committed the crimes of attempted arson and theft.The court heard the petition on December 10, 1980, and revoked Jaynes's probation.The court's reasons for this action and the evidence relied upon, as shown by the statement filed in response to our remand, inter alia, are:

"2.The Jackson County Probation Officer on November 6, 1980, while Mr. Jaynes probation was still active, filed a petition to revoke his 'shock probation' listing as one reason that on August 12, 1980, Mr. Jaynes violated the terms of his 'shock probation' by exerting unauthorized control over the property of Curt W. Hostettler, to-wit: a light blue with black top 1973 Dodge automobile, which case was filed by the Jackson County Prosecuting Attorney as theft in our cause number 80 CR 131.

3.The evidence in the revocation hearing was that Jerry McElfresh, an employee of Vic's Liquor Store in Seymour, Indiana, on August 12, 1980, saw Timothy Jaynes in a light blue with dark vinyl top Dodge automobile.Timothy Jaynes was well known to Jerry McElfresh and Mr. McElfresh stated that Timothy Jaynes was the driver of the car bearing the license number with the last four digits being 8609.Mr. McElfresh knew at the time that the car was stolen and reported the same to the police.Also present in the car at that time in the passenger's side of the vehicle was Duane Decker.

4.Police Officer George Spray of the Seymour Police testified that on that day he entered into the NCIC a description of a stolen vehicle complaint, that being a light blue '73 Dodge with license plate 93 D 8609 owned by one Darlene Hostettler of 8608 W. Washington Street, Indianapolis, Indiana.She or someone, (the record is unclear) had reported the theft to the Seymour Police Department at 5:02 p. m. that day.The car was stolen from a parking lot in the 100 block of East Second Street in Seymour, Indiana.Officer Spray further testified that he located the car on Vine Street in Seymour later that night.

5.Seymour Police Detective John Reinhart, Jr. testified that while he was processing the stolen vehicle at 11:30 P.M. that night on Vine Street in Seymour, Indiana, one Timothy Jaynes came up to the same black vinyl over light blue Dodge and asked Officer Reinhart what he was doing.Officer Reinhart told Jaynes and Jaynes then left.Jaynes was also well known to Officer Reinhart.Officer Reinhart testified that he dusted the vehicle for prints and matched a shoe print 'similar in design' to that of the shoe being worn at that time by Timothy Jaynes.The Court then determined that Timothy Jaynes had committed an act of theft while on probation."

ISSUE

Was the evidence presented at the revocation hearing sufficient to sustain the court's revocation of Jaynes's probation?

DISCUSSION AND DECISION

Jaynes first argues there were no terms of probation provided in the order granting shock probation.In that assertion he is correct.The applicable statute requires the court to specify the conditions of probation; however, it also provides that probation may be revoked if the person commits another crime.²In addition, it has been held that good behavior or lawful conduct is a term or condition of a defendant's probation, violation of which may result in probation revocation.Hoffa v. State, (1977)267 Ind. 133, 368 N.E.2d 250;Shumaker v. State, (1982) Ind.App., 431 N.E.2d 862(transfer pending).Although the better practice would be to provide specifically, as a condition of probation, that the probationer should not commit an additional crime, it is not necessary to do so.Such a condition is automatically a condition of probation by operation of law without a specific provision to that effect.West'sAIC 35-7-1-1; Hoffa.As stated in Commentary by Bobby Jay Small to West's AIC 35-7-2-2at page 613: "This section should be read in conjunction with IC 35-7-1-1 which provides that '[i]f the person commits an additional crime, the court may revoke the probation.'It appears...