State ex rel. Wilson v. Lowdermilk, 30493

• Decision Date: 21 January 1964
• Docket Number: No. 30493,30493
• Citation: 195 N.E.2d 476,245 Ind. 93
• Parties: STATE of Indiana on the Relation of Gayle WILSON, Relator, v. Joe W. LOWDERMILK, as Judge of the Sullivan Circuit Court, Respondent.
• Court: Indiana Supreme Court

Page 476

195 N.E.2d 476

245 Ind. 93

STATE of Indiana on the Relation of Gayle WILSON, Relator, v. Joe W. LOWDERMILK, as Judge of the Sullivan Circuit Court, Respondent.

No. 30493.

Supreme Court of Indiana.

Jan. 21, 1964.

Rehearing Denied Feb. 26, 1964.

Thomas J. Gallagher, Sullivan, for relator.

Edwin K. Steers, Atty. Gen., of Ind., William D. Ruckelshaus, Deputy Atty.Gen., for respondent.

ARTERBURN, Judge.

The relator has brought an original action for a writ of mandate against the Sullivan Circuit Court, asking that that court be required to vacate an order revoking a suspended sentence and that the relator be permitted to appeal from a revocation of the suspension of a sentence. We issued an alternative writ. The respondent court has filed a return herein.

It appears from the record and statement of attorneys representing the parties that the relator was charged with an assault and battery on September 25, 1962; that on April 1, 1963 he pleaded guilty to that charge. The court thereupon entered a judgment fining the defendant $1,000.00 and imposing a sentence of six months at the Indiana State Farm. An order was also made suspending the imposition of such a sentence as follows:

'The Court further finds that the fine and days shall be suspended on the good behavior of the defendant and on the further provision that he stay out of taverns in Sullivan County, Indiana and that he refrain from any violence, tumultuous conduct or fighting and brawling.'

The record further shows that on May 14, 1963 a hearing was had on a charge of parole violation. The court took the same under advisement. No further action appears to have been taken thereon and we give it no further attention.

However, thereafter on September 20, 1963, the Prosecuting Attorney of Sullivan County filed a petition asking again that the suspension of relator's sentence be revoked. The court thereupon issued a bench warrant for the arrest of the relator, who it appears was then in the hospital in Sullivan County, Indiana as the result of injuries received in an affray with the police. Because of the injuries, a hearing was not held upon the revocation of the suspension until October 21 and 22, 1963. At that time more than six months had expired since the time of the original sentence and the date of the judgment (April 1, 1963). The relator, at the time of the hearing, was represented by counsel. The court, after hearing evidence upon the violation lation of the conditions of the suspended sentence, found:

'* * * that before the expiration of the six (6) months time, towit, on the 12th day of September, 1963, the said Gayle Wilson did violate the terms of his suspended sentence and parole, and the Court further finds that the suspension should be revoked and the sentence imposed; that hearing was delayed until this date because of defendant's physical condition.'

The court further ordered that the defendant pay the fine of $1,000.00 and that he be imprisoned for six months at the Indiana State Farm 'from this date pursuant to the Judgment entered April 1, 1963.'

The contention first made by the relator it that even though the petition to revoke the suspension was filed and a bench warrant issued on September 20, 1963, prior to the expiration of the six months sentence, nevertheless the court lost jurisdiction to revoke the suspended sentence, since six months and expired by the time the court heard the matter and made the order of revocation on October 22, 1963. This presents to the court the proposition of whether or not, if any petition or motion involving the court's jurisdiction or requesting it to act in the matter is filed within time, the court loses jurisdiction to act upon such motion or petition if the time expires before court action. In other words, does a court retain jurisdiction for a sufficient length of time within which it can hear the parties and make a final disposition? Analogous situations arise where, for example, a motion for a new trial is filed on the last day of the period within which it can be filed, or a petition for an extension of time is filed within a few days before the time has expired. The same would be true of petitions to transfer from the Appellate Court to this court. In such cases we retain jurisdiction to rule upon petitions that have been filed within time, even though the time within which they must be filed has expired.

Similarly, it may be said that if an action is filed before the expiration of the statutes of limitation, the court still retains jurisdiction to act in the case, although pending such final determinations the statutes of limitation have expired. McAfee v. Reynolds (1891), 130 Ind. 33, 28 N.E. 423, 18 L.R.A. 211. In this case the court, in consideration of the relator's physical condition, delayed the ruling on the matter of the revocation of the suspended sentence until the relator could appear in court and be represented by counsel. Often, because of the shortness of time and press of work, the court cannot rule upon a pending matter at once. The practicalities of the situation require such time. The relator cites no authority in point to the contrary. There is no showing of any prejudice to the relator as a result of such delay. In the delays were for his benefit. The court is entitled to retain jurisdiction for a reasonable length of time within which it can properly hear, consider, and rule on such matters.

In Rode v. Baird, Sheriff (1924), 196 Ind. 335, 144 N.E. 415, 148 N.E. 406, we held a court on a petition or citation filed fourteen (14) months after the period of probation or suspension had expired, could not revoke a suspension and impose a sentence. That case is to be distinguished from Hunt v. State (1917), 186 Ind. 644, 117 N.E. 856, wherein the citation for revocation was filed before the period of probation had expired.

It is a general principle of law that a court once acquiring jurisdiction, retains jurisdiction until there is a final disposition of the matter or proceeding before it. 21 C.J.S. Courts § 94, p. 147.

Relator's position that the revocation of a suspended sentence must take place before the suspension period has expired cannot be sustained.

The next question that concerns us is: What sentence may be imposed in case of a revocation of a suspended sentence? It is argued by the relator that he was 'serving' his sentence from the time the judgment was originally entered on April 1, 1963, and that therefore only 11 days remained of his sentence when the citation was issued on September 20, 1963 and his sentence had expired when it was revoked on October 22, 1963. This, of course, is a purely semantical contention and to us appears to be a play on words. As a factual matter, the sentence was suspended. The defendant was not 'serving' imprisonment. He was at liberty under 'probation'. At most, he was serving a period or term of probation; not imprisonment. To reason otherwise would mean that a defendant accepting a suspended sentence could, within the last few days of the term under which the sentence was suspended, violate with impunity the conditions thereof, knowing full well that he would have little or no remaining penalty to pay by the time the court machinery could be set in motion to revoke the suspension. Such a holding would encourage defendants under suspended sentence to flee and return with impunity after the probation period had run. We do not believe the law should be interpreted in a fashion that makes it appear ridiculous, using a purely technical ground to reach such a result.

In view of what has been said, the following statute must be interpreted in that light. Burns' § 9-2211 (1956 Repl.) states:

'* * * At any time within the maximum period for which the defendant might originally have been committed, but in no case to exceed five years, the court may issue a warrant and cause the defendant to be arrested and brought before the court. If it shall appear that the defendant has violated the terms of his probation or has committed another offense, the court may revoke the probation or the suspension of sentence and may impose any sentence which might originally have been imposed.'

Probation is merely the condition resulting from a suspended sentence....