Stephens v. State
| Decision Date | 23 January 2004 |
| Docket Number | No. 49A02-0304-CR-330.,49A02-0304-CR-330. |
| Citation | 801 N.E.2d 1288 |
| Parties | Travis L. STEPHENS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Kurt A. Young, Nashville, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Travis L. Stephens appeals his sentence following the revocation of his probation. He presents a single issue for our review, namely, whether his sentence is inappropriate in light of the nature of the offense and his character. The State cross-appeals and presents a single issue for our review, namely, whether the trial court had jurisdiction to impose a three-year sentence.
We reverse and remand with instructions.
On March 22, 2001, Stephens pleaded guilty to Child Molesting, as a Class B felony. The trial court entered judgment accordingly and sentenced him to ten years, with four years suspended. Stephens completed the executed portion of his term and began probation in April 2002.1 The terms of his probation included attending psychosexual counseling sessions and not committing any crimes.
Stephens missed two counseling sessions during June and July 2002. At an administrative hearing on July 31, 2002, the State warned Stephens that it would file a notice of probation violation if he missed any more sessions. On October 11, 2002, the State filed a notice of probation violation, alleging that Stephens had failed to attend a scheduled counseling session on October 5, 2002. At the hearing on the alleged violation, Stephens admitted that he had not attended the psychosexual counseling as directed and that he had been convicted of driving while his license was suspended. Based upon those admissions, the trial court revoked Stephens' probation and sentenced him to three years. This appeal ensued.
Stephens contends that his three-year sentence is inappropriate in light of the nature of his offense and his character. See Ind. Appellate Rule 7(B). The State responds that the trial court did not have jurisdiction to impose an executed sentence other than the original suspended four-year sentence. We agree with the State.2
After issuing a final judgment, a court retains only such continuing jurisdiction as is permitted by the judgment or granted to the court by statute or rule. Lewis v. State, 754 N.E.2d 1019, 1020 (Ind. Ct.App.2001). Indiana Code Section 35-38-1-17 provides in relevant part:
Upon expiration of the 365-day limit, notwithstanding any petitions filed by the defendant, the court loses further jurisdiction over the defendant insofar as the alteration of the defendant's sentence is concerned. Lewis, 754 N.E.2d at 1020.
Further, Indiana Code Section 35-38-2-3(g) provides:
If the court finds that the person has violated a condition [of probation] at any time before termination of the period [of probation], and the petition to revoke is filed within the probationary period, the court may:
Stephens contends that subsection (3) "does not state that the entire sentence must be imposed, only that the court `may... order execution of the sentence that was suspended at the time of the initial sentencing.'" But the State reads the same statute to mean that if the trial court revokes a defendant's probation and wants to incarcerate him, the only option is to impose the entire suspended sentence.
The interpretation of a statute is a question of law reserved for the courts. State v. Rans, 739 N.E.2d 164, 166 (Ind.Ct. App.2000),trans. denied. If the language of a statute is clear and unambiguous, it is not subject to judicial interpretation. Id. However, when the language is susceptible to more than one construction, we must construe the statute to determine the apparent legislative intent. Id. Our task with respect to statutory interpretation has been summarized as follows:
We ascertain and implement legislative intent by "giving effect to the ordinary and plain meaning of the language used in the statute." The statute is examined and interpreted as a whole and the language itself is scrutinized, including the grammatical structure of the clause or sentence at issue. Within this analysis, we give words their common and ordinary meaning, without "overemphasizing a strict literal or selective reading of individual words."
Id. (quoting Clifft v. Indiana Dep't of State Revenue, 660 N.E.2d 310, 316 (Ind.1995) (citations omitted)).
Indiana Code Section 35-38-2-3(g) provides the trial court with three options when a defendant has violated a condition of his probation. The first two options authorize the trial court to continue probation, with or without modifying or enlarging the conditions, or to extend the original probationary period. The third option authorizes the trial court to order execution of a suspended sentence when the trial court revokes probation.
Another statute, Indiana Code Section 35-38-2-2.3(c), provides that as a condition of probation, a court may require that the person serve a term of imprisonment in an appropriate facility at the time or intervals (consecutive or intermittent) within the period of probation the court determines. We construe together statutes that relate to the same general subject matter. Boone County Area Planning Comm'n v. Shelburne, 754 N.E.2d 576, 580 (Ind.Ct.App.2001). Thus, where a trial court opts to modify the conditions of a defendant's probation under Indiana Code Section 35-38-2-3(g)(1), the court may order the probationer to serve a prison sentence under Section 35-38-2-2.3(c).
But in this case, the trial court did not modify the conditions of Stephens' probation or extend his probationary period. Rather, upon finding that Stephens violated a condition of his probation, the trial court expressly revoked his probation. See, e.g., Gardner v. State, 678 N.E.2d 398, 401 (Ind.Ct.App.1997)
(). Revocation of probation means the termination of all probationary conditions and privileges. When a trial court revokes probation, only the third option under Indiana Code Section 35-38-2-3(g) is available to the trial court, namely, "order[ing] execution of the sentence that was suspended at the time of initial sentencing." In this case, "the sentence that was suspended at the time of initial sentencing" was four years. Giving the words in the statute their ordinary and plain meaning, we conclude that in this case, where Stephens' probation was revoked more than 365 days after he began serving his initial sentence, the trial court did not have jurisdiction to impose a three-year sentence.3 Thus, we are obliged to reverse and remand with instructions to vacate the sentence and impose a sentence consistent with Indiana Code Section 35-38-2-3(g).
When a trial court revokes probation, the court has no alternative under Indiana Code Section 35-38-2-3(g)(3) but to order execution of the entire sentence suspended at the time of the initial sentencing. However, when a trial court modifies a condition of probation under Indiana Code Section 35-38-2-3(g)(1), the court is authorized under Section 35-38-2-2.3(c) to order the probationer to serve a sentence less than the entirety of the probationer's initial suspended sentence.
Our holding is confined to circumstances like those presented here, where the trial court expressly revokes the defendant's probation before sentencing. We note that if the trial court had not revoked Stephens' probation but had opted to modify the conditions of his probation instead, ...
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