Phillips v. State
| Decision Date | 31 March 1993 |
| Docket Number | No. 71A03-9211-CR-359,71A03-9211-CR-359 |
| Citation | 611 N.E.2d 198 |
| Parties | Alvin Glenn PHILLIPS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Kenneth M. Hays, South Bend, for appellant-defendant.
Linley E. Pearson, Atty. Gen., Sue A. Bradley, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.
Appellant-defendant Alvin Glenn Phillips appeals from the revocation of his probation following his convictions for possession of cocaine, a Class D felony, and possession of marijuana, a Class A misdemeanor. Phillips' sole claim on appeal is that the trial court erred in revoking his probation.
On November 17, 1989, the State filed a two-count information charging Phillips with possession of cocaine and marijuana. Subsequently, a plea agreement (Agreement) was entered into between the State and Phillips. Phillips agreed to plead guilty, and the State agreed to recommend that the entire sentence be suspended with probation. On July 20, 1990, the court held a hearing and unconditionally accepted the Agreement. Pursuant to the Agreement, the court suspended Phillips' three-year sentence on Count I and his one-year sentence on Count II, which were to run concurrently, and Phillips was placed on one and one-half years' probation. Several conditions and terms of probation were ordered by the court. Phillips acknowledged that violation of these terms could result in revocation of his probation.
A petition to revoke Phillips' probation was filed on April 10, 1991. On April 25, 1991, the court held a hearing, at which Phillips appeared. At the hearing, Phillips was furnished with a copy of the petition to revoke probation. The final hearing on the petition was held on May 22, 1991. At the final hearing, Phillips admitted violating the conditions of his probation, and although his probation was continued, he was ordered to serve four days in jail. Additionally, he was admonished that another violation would result in the revocation of his probation.
On July 2, 1991, Phillips was charged with battery. In addition, on September 25, 1991, Phillips failed to appear for a scheduled meeting with his probation officer. As a result of these violations of his probation, a second petition to revoke was filed on February 7, 1992. On March 20, 1992, Phillips filed a motion to dismiss alleging that the petition to revoke his probation was untimely. After a hearing on Phillips' motion, the trial court found that the filing of the earlier petition tolled the period of probation and that the filing of the second petition was therefore timely. Thereafter, Phillips was found to have violated the terms of his probation. The trial court revoked his probation and reinstated the original sentence. Phillips now appeals this revocation.
Specifically, Phillips argues that there was insufficient proof that his probationary period was ever tolled. He contends that his probationary period expired on January 20, 1992, and, therefore, the second petition to revoke probation, which was not filed until February 7, 1992, was filed eighteen days after his probation had expired.
IND.CODE Sec. 35-38-2-3(c) (1992 Supp.) 1 provides that "[t]he issuance of a summons or warrant tolls the period of probation until the final determination of the charge." Phillips' contention that his probationary period was never tolled by the first petition to revoke his probation since neither a summons nor warrant was issued, is mistaken. IND.CODE Sec....
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Mumford v. State
...the probation period is tolled from the time of the filing of the revocation petition until its disposition, citing Phillips v. State (1993), Ind.App., 611 N.E.2d 198. The court held, however, that Phillips was not applicable in Slinkard's case because Slinkard did not violate conditions du......
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Slinkard v. State
...until the disposition of any outstanding petitions to revoke. In support of its argument, the State cites three cases, Phillips v. State (1993), Ind.App., 611 N.E.2d 198, Hayes v. State (1992), Ind.App., 590 N.E.2d 1116, trans. denied, and Alley v. State (1990), Ind.App., 556 N.E.2d 15, tra......
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Ray-Hayes v. Heinamann
...we have held that the important question is not the label given to an action but rather its substance. See Phillips v. State, 611 N.E.2d 198, 199 (Ind.Ct.App.1993). See also, English Coal Co. v. Durcholz, 422 N.E.2d 302, 308, (Ind.Ct.App.1981), trans. denied (character of an action is deter......
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Turpin v. State, 22A01-1012-CR-626
...of probation violation. Each such order was a "summons" for purposes of tolling the probationary period. See Phillips v. State, 611 N.E.2d 198, 199 (Ind. Ct. App. 1993) (document entitled "NOTICE OF HEARING" was a summons because it was addressed to Phillips, set forth the nature of the off......