State v. Lime, No. 49A04-9304-CR-132

Docket NºNo. 49A04-9304-CR-132
Citation619 N.E.2d 601
Case DateAugust 30, 1993
CourtCourt of Appeals of Indiana

Page 601

619 N.E.2d 601
STATE of Indiana, Appellant-Respondent,
v.
Anthony Scott LIME, Appellee-Petitioner.
No. 49A04-9304-CR-132.
Court of Appeals of Indiana,
Fourth District.
Aug. 30, 1993.
Rehearing Denied Oct. 28, 1993.
Transfer Denied Jan. 5, 1994.

Page 602

Pamela Carter, Atty. Gen., Jodi Kathryn Rowe, Deputy Atty. Gen., Indianapolis, for appellant-respondent.

James W. McNew, Brand & Allen, Greenfield, for appellee-petitioner.

CONOVER, Judge.

The State appeals the post-conviction court's grant of Anthony Scott Lime's petitions for post-conviction relief.

We affirm.

The only issue the State presents for review is whether the trial court erred in granting Lime's petitions for post-conviction relief.

On September 16, 1985, the State charged Lime by information under Cause No. A1085-6289 with operating a motor vehicle while intoxicated, a class A misdemeanor, and operating a vehicle with a blood alcohol content of .10% or more by weight, a class C misdemeanor. IND.CODE 9-30-5-2; IC 9-30-5-1. After executing a written waiver of rights, Lime pled guilty to the charge of operating a motor vehicle while intoxicated. At the sentencing hearing, the trial court asked him if he was forced to sign the plea agreement. He answered "No." Lime stipulated to the factual basis of the charge. The court then accepted his guilty plea and sentenced him.

On September 15, 1986, the State charged Lime by information under Cause No. A1086-5894 with operating a motor vehicle while intoxicated, a class D felony, and public intoxication, a class B misdemeanor.

Page 603

IC 9-30-5-3; IC 7.1-5-1-3. Lime entered into a plea agreement in which the State would recommend dismissal of the second charge if he pled guilty to the charge of operating a motor vehicle while intoxicated. The plea agreement contained a written waiver of rights which Lime initialed and signed. The court asked Lime if that was his signature on the plea agreement, if he had read the sheet, if he was aware of the rights he was giving up, and if he had any questions about his rights. After Lime answered the first three questions in the affirmative and the fourth in the negative, the court accepted the plea agreement and sentenced him.

On October 20, 1992, Lime filed petitions for post-conviction relief under both causes, alleging during each of the proceedings he was not adequately advised of his constitutional rights. The court held a hearing on both petitions. At the hearing, Lime did not testify. Instead he stated he was resting on his verified petition. In argument, Lime referred to the guilty plea transcripts but they were not entered into evidence. Subsequently, the court granted both petitions and ordered his convictions vacated. In its findings of fact and conclusions of law, the court stated Lime's petition was meritorious since no evidence existed in the record to show Lime was advised of his right to a trial by jury, right to confront and cross-examine witnesses against him, or his privilege against self-incrimination prior to the entry of his pleas of guilty. The State appeals.

When the State appeals from an order granting post-conviction relief, the standard of review for a negative judgment does not apply. State v. Clanton (1982), Ind.App., 443 N.E.2d 1204, 1205. The review of civil cases tried by the court without a jury is governed by Ind.Trial Rule 52(A) which provides the judgment may not be set aside unless the findings or judgment is clearly erroneous and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

The State argues the petitions and guilty plea transcripts did not constitute competent evidence. Therefore, the State maintains Lime did not meet his burden of proof, and the trial court erred in granting relief.

In a post-conviction relief proceeding, a petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence. Ind.Post-Conviction Rule 1(5); Followell v. State (1991), Ind., 578 N.E.2d 646, 648.

...

To continue reading

Request your trial
14 practice notes
  • State v. Winters, No. 49A02-9604-PC-248
    • United States
    • Indiana Court of Appeals of Indiana
    • 4 Abril 1997
    ...appeals the granting of post-conviction relief, the standard of review applicable to negative judgments does not apply. State v. Lime, 619 N.E.2d 601, 603 (Ind.Ct.App.1993), trans. denied (1994). We review under the standard noted in Ind.Trial Rule 52(A). Id. Under that standard, this court......
  • Bautista v. State, Court of Appeals Case No. 20A-PC-1542
    • United States
    • Indiana Court of Appeals of Indiana
    • 29 Enero 2021
    ...none of which specifically addresses the rights being waived, Ponce , 992 N.E.2d 726, 729 at 213 [sic] quoting [ State v. Lime , 619 N.E.2d 601, 605 (Ind. Ct. App. 1993), trans. denied (1994)]. Such was not the case during Bautista's guilty plea hearing. Bautista's [sic] was advised of his ......
  • Jackson v. State, No. 45A03-9605-PC-157
    • United States
    • Indiana Court of Appeals of Indiana
    • 16 Enero 1997
    ...not inform a defendant of his Boykin rights, a conviction will be vacated without a showing of prejudice to defendant. State v. Lime, 619 N.E.2d 601 (Ind.Ct.App.1993), reh'g denied, trans. denied. At the guilty plea hearing, held on the day that the matter was set for trial, the following e......
  • Harris v. State, No. 49A04-9602-PC-56
    • United States
    • Indiana Court of Appeals of Indiana
    • 27 Agosto 1996
    ...in his appellate brief nor has he made a showing that he would not have pled guilty had he been accurately advised. See State v. Lime, 619 N.E.2d 601, 604 (Ind.Ct.App.1993), reh'g denied, trans. denied (mere proof that the court failed to give a non-Boykin advisement is not sufficient to re......
  • Request a trial to view additional results
14 cases
  • State v. Winters, No. 49A02-9604-PC-248
    • United States
    • Indiana Court of Appeals of Indiana
    • 4 Abril 1997
    ...appeals the granting of post-conviction relief, the standard of review applicable to negative judgments does not apply. State v. Lime, 619 N.E.2d 601, 603 (Ind.Ct.App.1993), trans. denied (1994). We review under the standard noted in Ind.Trial Rule 52(A). Id. Under that standard, this court......
  • Bautista v. State, Court of Appeals Case No. 20A-PC-1542
    • United States
    • Indiana Court of Appeals of Indiana
    • 29 Enero 2021
    ...none of which specifically addresses the rights being waived, Ponce , 992 N.E.2d 726, 729 at 213 [sic] quoting [ State v. Lime , 619 N.E.2d 601, 605 (Ind. Ct. App. 1993), trans. denied (1994)]. Such was not the case during Bautista's guilty plea hearing. Bautista's [sic] was advised of his ......
  • Jackson v. State, No. 45A03-9605-PC-157
    • United States
    • Indiana Court of Appeals of Indiana
    • 16 Enero 1997
    ...not inform a defendant of his Boykin rights, a conviction will be vacated without a showing of prejudice to defendant. State v. Lime, 619 N.E.2d 601 (Ind.Ct.App.1993), reh'g denied, trans. denied. At the guilty plea hearing, held on the day that the matter was set for trial, the following e......
  • Harris v. State, No. 49A04-9602-PC-56
    • United States
    • Indiana Court of Appeals of Indiana
    • 27 Agosto 1996
    ...in his appellate brief nor has he made a showing that he would not have pled guilty had he been accurately advised. See State v. Lime, 619 N.E.2d 601, 604 (Ind.Ct.App.1993), reh'g denied, trans. denied (mere proof that the court failed to give a non-Boykin advisement is not sufficient to re......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT