Thompson v. State, No. 579S125

Docket NºNo. 579S125
Citation270 Ind. 677, 389 N.E.2d 274
Case DateMay 11, 1979
CourtSupreme Court of Indiana

Page 274

389 N.E.2d 274
270 Ind. 677
Richard THOMPSON, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 579S125.
Supreme Court of Indiana.
May 11, 1979.

Page 275

Harriette Bailey Conn, Public Defender, Howard N. Bernstein, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Richard Thompson, petitioner, was charged with first-degree burglary pursuant to Ind.Code § 35-13-4-4(a) (Burns 1975). He pled guilty to entering to commit a felony, Ind.Code § 35-13-4-5 (Burns [270 Ind. 678] 1975). He was sentenced, as a result of a plea bargain agreement, to an indeterminate period of one to ten years. Thompson appealed his sentence to the First District, Indiana Court of Appeals, arguing that his sentence must be reduced to one to five years. The Court of Appeals, in Thompson v. State, (1978) Ind.App., 380 N.E.2d 1292, determined that Thompson had failed procedurally to bring his sentencing argument within the jurisdiction of the court as a Petition for Post-Conviction Relief under Ind. R.P.C. 1. Because of the confusion created by the Court of Appeals opinion, we now vacate that opinion and grant transfer.

I.

The defendant was sentenced on January 3, 1977; on July 11, 1977, he filed a "Petition to Correct Sentence." 1 See Ind.Code § 35-8-1A-17 (Burns 1975). The petition was denied after a hearing on July 12,

Page 276

1977, and Thompson's motion to correct errors was denied August 30, 1977. The Court of Appeals vacated the trial court proceedings under a theory that Thompson should have used Ind. R.P.C. 1, § 1(a)(3) to raise the issue of the erroneous sentence at the trial court level. It is true, as the Court of Appeals reasoned, that Ind.Code § 35-8-1A-17 (Burns 1975) provides authority for a trial court to correct an erroneous sentence. But, the Court of Appeals was in error in concluding that Ind.Code § 35-8-1A-17 (Burns 1975) provides no procedural mechanism to raise the issue of an erroneous sentence. The statute clearly provides procedure: "A motion to correct sentence shall be in writing and shall be supported by a memorandum of law specifically pointing out the defect in the original sentence." We disagree with the Court of Appeals in its implied holding that Ind. R.P.C. 1 § 1(a)(3) is in conflict with Ind.Code § 35-8-1A-17 (Burns 1975). The post-conviction rule reads: "Any person who has been convicted of, or sentenced for, a crime by a court of this state, and who claims: . . . (3) that the sentence exceeds[270 Ind. 679] the maximum authorized by law, or is otherwise erroneous; . . . may institute at any time a proceeding under this Rule to secure relief." We would emphasize that the rule is permissive and not mandatory in form. The logical and necessary consequence of construing the rule with the statute is that a defendant may utilize either method to seek correction of an erroneous sentence. 2

By allowing a defendant either avenue in forwarding his sentencing error, judicial time and effort may be conserved while justice is speedily and efficiently afforded those convicted of crime. When a defendant wishes to question only the propriety of his sentence, he may utilize the vehicle of Ind.Code § 35-8-1A-17 (Burns 1975). This vehicle is available to a defendant whether or not a guilty plea has been filed. Of course, the defendant may also file, within sixty days of sentencing, a motion to correct errors and designate an erroneous sentence as the complained of error. See Ind. R.Tr.P. 59(A)(7) and 59(A)(9). Weyls v. State, (1977) 266 Ind. 301, 362 N.E.2d 481. But, there is nothing in the statute which should preclude a defendant from raising the issue of an erroneous sentence at a time after sixty days have elapsed. The statute does require that the motion to correct sentence be in writing and be supported specifically. These requirements are not unlike those contemplated within Ind. R.Tr.P. 59.

However, there is no requirement of verification embodied within the statutory procedure. In this regard, the statutory vehicle is decidedly less cumbersome than Ind. R.P.C. 1. We agree that the verification requirement with the post-conviction rule is not a mere technicality, but rather serves the substantial purpose of "finally closing the door to post-conviction remedies." See Owen v. State, (1975) [270 Ind. 680] Ind.App., 338 N.E.2d 715, 718. Nevertheless, if a defendant files with the trial court an unverified petition, purportedly under Ind. R.P.C. 1, § 1(a)(3), in which sentencing only is at issue, the court should treat that unverified petition as a motion to correct sentence pursuant to Ind.Code § 35-8-1A-17 (Burns 1975). Thus, an unverified petition (addressed only to an incorrect sentence) or a motion to correct sentence would not preclude the defendant from filing a later verified petition under Ind. R.P.C. 1 where the facts warrant such a filing. Once a trial court has ruled upon the unverified petition (addressed to the issue of an erroneous sentence) or the motion to correct sentence,

Page 277

that ruling is subject to appeal via normal appellate procedures (filing of a motion to correct errors, denial of same, praecipe, etc.). Once an appealed decision has...

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20 practice notes
  • Smith v. State, CR-03-2146.
    • United States
    • Alabama Court of Criminal Appeals
    • February 25, 2005
    ...but by his attorney, the petition should be dismissed for want of jurisdiction. "We are aware of language in Thompson v. State, (1979) 270 Ind. 677, Page 153 N.E.2d 274, suggesting that verification is necessary before a trial court gains jurisdiction over a post-conviction relief petition.......
  • Brown v. State, No. 2-283A67
    • United States
    • Indiana Court of Appeals of Indiana
    • December 22, 1983
    ...but by his attorney, the petition should be dismissed for want of jurisdiction. We are aware of language in Thompson v. State, (1979) 270 Ind. 677, 389 N.E.2d 274, suggesting that verification is necessary before a trial court gains jurisdiction over a post-conviction relief petition. We ar......
  • Mitchell v. State, No. 49S00-9803-CR-163.
    • United States
    • April 18, 2000
    ...A trial court's ruling upon a motion to correct sentence is subject to appeal by normal appellate procedures. Thompson v. State, 270 Ind. 677, 680, 389 N.E.2d 274, 276-77 (1979). While this Court will defer to the trial court's factual finding, reviewing only for abuse of discretion, we wil......
  • Addis v. State, No. 3-1079A277
    • United States
    • Indiana Court of Appeals of Indiana
    • May 15, 1980
    ...guarantees are absolute and outside the discretion of any court to ignore or deny.' " (emphasis added) Thompson v. State, (1979) Ind., 389 N.E.2d 274, 277 quoting Branan v. State, (1974) 161 Ind.App. 443, 445, 316 N.E.2d 406, 408. And in Sanford v. State, (1971) 255 Ind. 542, 265 N.E.2d 701......
  • Request a trial to view additional results
20 cases
  • Smith v. State, CR-03-2146.
    • United States
    • Alabama Court of Criminal Appeals
    • February 25, 2005
    ...but by his attorney, the petition should be dismissed for want of jurisdiction. "We are aware of language in Thompson v. State, (1979) 270 Ind. 677, Page 153 N.E.2d 274, suggesting that verification is necessary before a trial court gains jurisdiction over a post-conviction relief petition.......
  • Brown v. State, No. 2-283A67
    • United States
    • Indiana Court of Appeals of Indiana
    • December 22, 1983
    ...but by his attorney, the petition should be dismissed for want of jurisdiction. We are aware of language in Thompson v. State, (1979) 270 Ind. 677, 389 N.E.2d 274, suggesting that verification is necessary before a trial court gains jurisdiction over a post-conviction relief petition. We ar......
  • Mitchell v. State, No. 49S00-9803-CR-163.
    • United States
    • April 18, 2000
    ...A trial court's ruling upon a motion to correct sentence is subject to appeal by normal appellate procedures. Thompson v. State, 270 Ind. 677, 680, 389 N.E.2d 274, 276-77 (1979). While this Court will defer to the trial court's factual finding, reviewing only for abuse of discretion, we wil......
  • Addis v. State, No. 3-1079A277
    • United States
    • Indiana Court of Appeals of Indiana
    • May 15, 1980
    ...guarantees are absolute and outside the discretion of any court to ignore or deny.' " (emphasis added) Thompson v. State, (1979) Ind., 389 N.E.2d 274, 277 quoting Branan v. State, (1974) 161 Ind.App. 443, 445, 316 N.E.2d 406, 408. And in Sanford v. State, (1971) 255 Ind. 542, 265 N.E.2d 701......
  • Request a trial to view additional results

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