Kincaid v. State

• Citation: 757 N.E.2d 713
• Decision Date: 06 November 2001
• Docket Number: No. 06A01-0104-PC-138.,06A01-0104-PC-138.
• Parties: Terry R. KINCAID, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

757 N.E.2d 713

Terry R. KINCAID, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 06A01-0104-PC-138.

Court of Appeals of Indiana.

November 6, 2001.

Nicholas C. Deets, Hovde Law Firm, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney

General, Indianapolis, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

Terry R. Kincaid contends that the trial court's failure to credit him for probation served prior to granting his petition for post conviction relief violates the double jeopardy clauses of the United States and Indiana Constitutions. Because we find that double jeopardy principles dictate that Kincaid should have been credited for the time served on probation under his original plea agreement, we reverse.¹

Facts and Procedural History

On July 29, 1996, the State filed charges of Escape, Resisting Law Enforcement, Operating While Intoxicated, Attempted Theft, and Criminal Mischief, as well as a violation of probation in another cause, against Kincaid. Kincaid and the State entered into a plea agreement in which Kincaid pled guilty to Resisting Law Enforcement and Operating While Intoxicated and the State dismissed the rest of the charges. Pursuant to the plea agreement that was accepted on September 22, 1997, the trial court sentenced Kincaid to the Indiana Department of Correction for a period of one year on each count, consecutive, which the trial court suspended except for the 22 days already served, and to supervised probation for a period of two years.

On June 10, 1998, a report that Kincaid violated his probation was filed.² Thereafter, the State filed a petition to revoke Kincaid's probation. After several continuances, the trial court held a final hearing on the petition to revoke on March 4, 1999. Kincaid admitted the violation and the trial court extended his period of probation by one year and ordered him to serve 60 days on house arrest as an additional condition of his probation.

On October 6, 1999, Kincaid sought post-conviction relief from the plea he entered into in September 1997. Kincaid alleged that he did not enter the plea knowingly and voluntarily. On February 3, 2000, the trial court granted Kincaid's petition and set aside his previously entered pleas to Resisting Law Enforcement and Operating While Intoxicated. Pursuant to Indiana Post-Conviction Rule 1, § 10,³ Kincaid again pled guilty to Operating While Intoxicated and Resisting Law Enforcement on February 17, 2000. The terms of the new plea agreement mirrored the terms of Kincaid's previous plea. The trial court did not credit Kincaid for the time he previously served on probation.

On July 28, 2000, Kincaid violated his probation and, subsequently, the State filed a petition to revoke Kincaid's probation, alleging that Kincaid had been charged with Operating While Intoxicated. Kincaid then filed a Motion to Correct Erroneous Sentence and to Dismiss Petition to Revoke alleging that the trial court had improperly failed to credit his new sentence with the time he had served on probation under the original sentence, and that, properly credited, his probationary term had expired prior to the violation. The trial court denied Kincaid's motion. Next, Kincaid filed a motion to reconsider clarifying that he was seeking credit for the two years he had served on probation under the Double Jeopardy Clause of the United States Constitution, Amendment V.⁴ The trial court similarly denied this request, but stated that it would grant permission for an interlocutory appeal if requested. We denied Kincaid's petition for interlocutory appeal on December 4, 2000, and the trial court set the probation revocation for final hearing.

After the trial court denied an amended Motion to Correct Erroneous Sentence and to Dismiss Petition to Revoke, Kincaid admitted violating his probation by consuming alcohol. The trial court ordered Kincaid to execute the remaining portion of his sentence but granted his Motion to Stay Sentence Pending Appeal. This appeal ensued.

Discussion and Decision

Kincaid presents an issue of first impression for this court to review. Kincaid posits that the trial court's failure to credit him for probation served prior to granting his petition for post-conviction relief violates the Double Jeopardy Clauses of the United States and Indiana Constitutions. In particular, Kincaid maintains that re-sentencing him to the full two years of probation resulted in multiple punishments for the same offense in contravention of double jeopardy principles. Moreover, he asserts that had the trial court credited him for the time he served on probation, he would not have had any further probation to serve and would not have been on probation at the time of his July 28, 2000 probation violation.

At the outset we acknowledge that a violation of a condition of probation does not constitute an offense within the purview of double jeopardy analysis. Kincaid v. State, 736 N.E.2d 1257, 1259 (Ind. Ct.App.2000). This conclusion derives from the fact that revocation proceedings may be based upon violations of probation conditions rather than upon the commission of a crime, and the finding of whether a defendant has complied with these conditions is a question of fact and not an adjudication of guilt. Id. Accordingly, a trial court does not violate double jeopardy principles in requiring a probationer to serve his entire suspended sentence, without giving him credit for time spent on probation prior to the revocation, after finding he violated one or more conditions of his probation, even if he has served all but one day of his probationary period. Ind.Code § 35-38-2-3(a)(1), (g)(3); see also Crump v. State, 740 N.E.2d 564, 568 (Ind.Ct.App.2000),

trans. denied (reiterating that the probationary period begins immediately after sentencing and ends at the conclusion of the probationary phases of the defendant's sentence); Kincaid, 736 N.E.2d at 1259 (declaring that one of the options available to a trial court when revoking a person's probation is to order the execution of the sentence that was suspended at the time of initial sentencing). However, in the instant case we are not dealing with a revocation of probation. Instead, we are presented with the question of whether double jeopardy requires us to credit a probationer for time served on probation when the underlying conviction is set aside and the defendant is re-sentenced. We find that it does.

The U.S. Constitution, Amendment V provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." This clause is applicable to the states through the Fourteenth Amendment. Bryant v. State, 660 N.E.2d 290, 295 (Ind.1995), cert. denied (citing Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)). Similarly, the Indiana Constitution, Article I, § 14 provides in part: "No person shall be put in jeopardy twice for the same offense."

Both the federal and state double jeopardy clauses have been interpreted to protect a person from suffering (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Wilcox v. State, 748 N.E.2d 906, 909 (Ind. Ct.App.2001), trans. denied. See also North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969),

overruled on other grounds. The U.S. Supreme Court has stated:

This last protection is what is necessarily implicated in any consideration of the question whether, in the imposition of sentence for the same offense after retrial, the Constitution requires that credit must be given for punishment already endured. The Court stated the controlling constitutional principle almost 100 years ago, in the landmark case of Ex parte Lange, 18 Wall. 163, 168, 21 L.Ed. 872 [(1873)]:

"If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same [offense]. And * * * there has never been any doubt of (this rule's) entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offense." "* * * (T)he Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it." Id., at 173.

Pearce, 395 U.S. at 717-18, 89 S.Ct. 2072.

The State does not dispute that the two different pleas, each of which resulted in a two-year term of supervised probation, were based on the same offense. Therefore, we need only determine whether the trial court subjected Kincaid to "multiple punishments" for the same offense by re-sentencing him under the new plea agreement without giving him credit for time he served on probation under his original plea. The U.S. Supreme Court has previously determined that "probation is itself a punishment that is criminal in nature." Hicks v. Feiock, 485 U.S. 624, 639 n. 11, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988). Likewise, we have recognized probation as a form of punishment. See Kopkey v. State, 743 N.E.2d 331, 337 (Ind.Ct.App.2001),

trans. denied (stating "[i]n-home detention, like probation or incarceration, is a form of criminal punishment. Like probation, in-home detention is one point on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service.") (citations omitted). Moreover, it is a well-established principle that for double jeopardy purposes a defendant must be credited for time served if re-sentenced following a successful petition for post-conviction relief. Ind. Post-Conviction Rule 1, § 10. See also Pearce, 395 U.S. at 718,

89 S.Ct. 2072 (enunciating that it is clear that the basic constitutional guarantee of not being subjected to multiple...