Sutton v. State, 30320
| Decision Date | 17 June 1963 |
| Docket Number | No. 30320,30320 |
| Citation | 191 N.E.2d 104,244 Ind. 368 |
| Parties | Jerry G. SUTTON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Leroy K. New, Indianapolis, for appellant.
Edwin K. Steers, Atty. Gen., Carl E. Van Dorn, Deputy Atty. Gen., for appellee.
Appellant was charged with the crime of assault and battery with intent to commit a felony. He entered a plea of guilty on October 24, 1960. On December 2, 1960, the trial court sentenced him to two to fourteen years in the State Reformatory, suspending sentence and placing him on probation. On December 28, 1961, a petition to revoke the suspended sentence was filed by the Probation Officer of Hamilton County, asserting that appellant had violated the terms of probation, namely, that he had used intoxicants and had failed to remain at liberty without violating the law. On June 15, 1962, the Hamilton Circuit Court heard evidence on this petition both for the State and on behalf of appellant, who testified on his own behalf. The court entered a finding that appellant had violated Item 3 of the 'Terms of Probation,' which was the use of intoxicants, and revoked the probation and the suspended sentence.
In the decree revoking the probation, appellant was ordered to be confined in accordance with the prior sentence of December 2, 1960, and the confinement was to be a continuation of that sentence rather than the commencement of a new sentence. In other words, appellant was to be credited for time served beginning as of December 2, 1960.
From this order, appellant filed what was purported to be a motion for new trial, which the court overruled. On October 10, 1962, he filed a transcript of the record and assignment of errors with the Clerk of this Court, assigning as the sole error the overruling of the purported motion for new trial. On December 7, 1962, his brief was filed.
Appellee has filed a motion to dismiss the appeal or affirm the judgment, based principally upon the ground that appellant has not appealed from a final judgment; that therefore this court is without jurisdiction to hear the appeal.
The entry by the Hamilton Circuit Court, from which appellant claims to take his appeal, reads in part as follows:
'IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED that the probation and suspended sentence of the defendant be and they hereby are revoked and the defendant is ordered confined in accordance with the prior sentence on 2 December 1960, * * *.'
In the Argument section of his brief, appellant takes if for granted that a decision and final judgment of the court was entered, for he argues the sufficiency of the evidence and that the finding and 'judgment' is contrary to law.
We agree with appellee that the findings and decision of the trial court, although in the style and form of a judgment, do not constitute a final judgment from which appellant may appeal.
It has been said that the suspension of sentence or probation comes as a privilege or act of grace, and cannot be demanded as a matter of right, and the granting or refusal of such suspension or probation rests within the sound discretion of the court. 24 C.J.S., Criminal Law, § 1618(5), p. 879; Rode v. Baird, Sheriff (1925), 196 Ind. 335, 144 N.E. 415, 148 N.E. 406. Our statutes specifically grant courts with criminal jurisdiction the power to suspend sentence and parole defendants convicted of misdemeanors and felonies upon entry of judgment of conviction, with certain exceptions not pertinent herein. Burns' Ind.Stat., 1956 Replacement, § 9-2209. In exercising this power, conditions may be imposed by the court. Burns' Ind.Stat., 1956, Replacement, § 9-2210. It is also provided that such probation may be revoked upon violation of the terms thereof after hearing before the court. Burns' Ind.Stat., 1956 Replacement, § 9-2211.
In Burns v. United States (1932), 9 Cir., 59 F.2d 721, 725, it was...
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Drollinger v. Milligan
...the proper subject matter for a habeas corpus action. The granting of probation is a discretionary act, Sutton v. State of Indiana, 244 Ind. 368, 371, 191 N.E.2d 104 (1963), and in effect is an alternative to imprisonment. In placing a defendant on probation the trial court is required to i......
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Dow v. State
...appellate review, decisions of court or magistrate in cases of revocation of probation are final and non-appealable. Sutton v. State, 1963, 244 Ind. 386, 191 N.E.2d 104; State v. Saavedra, 1968, 5 Conn.Cir. 367, 253 A.2d 677; Ray v. State, 1969, Miss., 229 So.2d 579. The Maryland Court, how......
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Smith v. State
...was not assessed in such cases as State ex rel. Wilson v. Lowdermilk, Judge (1963), 245 Ind. 93, 195 N.E.2d 476, and Sutton v. State (1963), 244 Ind. 368, 191 N.E.2d 104. Davis v. State (1971), 256 Ind. 58, 267 N.E.2d 63, is the first Indiana case to assess this North Carolina v. Pearce (19......
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Money v. State
...the effective date of IC 1971, 35-7-2-2(g) (Burns Code Ed.), no appeal was permitted from a revocation of probation. Sutton v. State, (1963) 244 Ind. 368, 191 N.E.2d 104; Accord, Drollinger v. Milligan, (7th Cir. 1977) 552 F.2d 1220. Appellant's relief would come by way of PC 1, § 1(a)(5). ......