State ex rel. Abel v. Vigo Circuit Court
| Citation | 462 N.E.2d 61 |
| Decision Date | 19 April 1984 |
| Docket Number | No. 583S167,583S167 |
| Parties | STATE of Indiana, ex rel. Eric M. ABEL, Vigo County Prosecuting Attorney, Relator, v. VIGO CIRCUIT COURT, and Robert H. Brown, Judge, Respondents. |
| Court | Supreme Court of Indiana |
Linley E. Pearson, Atty. Gen., George B. Huff, Jr., Deputy Atty. Gen., Indianapolis, Eric M. Abel, Vigo County Pros. Atty., James Walker, Deputy Pros. Atty., Terre Haute, for relator.
Dennis R. Majewski, Terre Haute, for respondents.
ORIGINAL ACTION
At the time relator's Petition for Writ of Prohibition and Writ of Mandamus was presented to this Court, the Court tentatively voted to deny the writ. After further consideration, however, the Court is now of the opinion that the writ should be granted.
The facts are these. The Honorable Hugh McQuillan presided over a jury trial in the Vigo Circuit Court in July of 1981. As a result of that trial, a defendant was found guilty of two felony counts. On August 7, 1981, the defendant was sentenced to a three year term and a concurrent two year term of imprisonment. The defendant was released pending appeal on a posted appeal bond. Nearly a year later the Court of Appeals affirmed the conviction. On July 23, 1982, the defendant appeared before Judge McQuillan for the execution of his sentence.
On January 1, 1983, the Honorable Robert H. Brown assumed the bench of the Vigo Circuit Court. Judge McQuillan became the judge of the Vigo County Court, Division 5.
On January 3, 1983, the defendant filed a Petition for Shock Probation. On January 12, 1983, the Honorable Judge Brown scheduled a hearing on the motion which was held on February 18, 1983. Judge Brown granted the motion on April 21, 1983.
The Prosecutor's office sought a Writ of Mandamus and a Writ of Prohibition seeking to vacate the order and to require the judge to order the defendant to serve the executed sentence.
Relator claims, inter alia, that the 180 day period for sentence modification had passed. With this we now agree. At the time of the sentence, modification was governed by IC Sec. 35-4.1-4-18 [Repealed by Acts 1983, P.L. 311, Sec. 3] which stated in pertinent part:
"The court, within one hundred eighty (180) days after it imposes a sentence, ... may reduce or suspend the sentence, incorporating its reasons in the record."
The clear intention of the legislature is to give the trial court an opportunity to sentence a defendant but keep reserved in his judgment an opportunity to review incarceration of the defendant up to 180 days within which time he may grant probation as though it were originally done at the time of sentencing. Prior to the enactment of this provision, a trial judge had no authority over a defendant after he pronounced sentence. The jurisdiction over the defendant then went to the Department of Correction. This statute gave a...
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Collins v. State
...in fashioning the terms of a defendant's probation." Bailey v. State, 717 N.E.2d 1, 4 (Ind.1999) (citing State ex rel. Abel v. Vigo Cir. Ct., 462 N.E.2d 61, 63 (Ind.1984)). This court will not set aside the terms of a probation order unless the trial court has abused its discretion. See id.......
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Smith v. State
...with the trial court. The trial court also has discretion in granting probation and setting the terms thereof. State ex rel. Abel v. Vigo Circuit Court (1984), Ind., 462 N.E.2d 61. Since the defendant had no right to probation, she cannot say that the trial court erred when it refused to gr......
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Ames v. State
...(1982) because the grant of probation is a matter of grace within the sole discretion of the trial judge. State ex rel. Abel v. Vigo Circuit Court, (1984) Ind., 462 N.E.2d 61 (citing State ex rel. Sufana v. Lake Superior Court, (1978) 269 Ind. 466, 381 N.E.2d ...
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Reinbold v. State
...this Court will set aside a probation order only upon a showing that the trial court abused its discretion. State ex rel. Abel v. Vigo Circuit Court (1984), Ind., 462 N.E.2d 61. Although the sentencing and probation order here is admittedly unusual, none of its provisions can be described a......