White v. State, No. 10A01-0209-PC-348.

Docket NºNo. 10A01-0209-PC-348.
Citation793 N.E.2d 1127
Case DateAugust 20, 2003
CourtCourt of Appeals of Indiana

793 N.E.2d 1127

James Ernest WHITE, Appellant-Petitioner,
v.
STATE of Indiana, Appellee-Respondent

No. 10A01-0209-PC-348.

Court of Appeals of Indiana.

August 20, 2003.


James E. White, Pendleton, pro se.

Steve Carter, Attorney General of Indiana, Christopher C.T. Stephen, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MAY, Judge.

James Ernest White appeals the dismissal of his petition for post-conviction relief. The dispositive issue presented is whether White's petition for post-conviction relief is a successive petition for post-conviction relief such that he was required to receive authorization from this court pursuant to Indiana Post-Conviction Rule

793 N.E.2d 1128
1(12) before the post-conviction court had jurisdiction over his petition

We reverse and remand.

FACTS AND PROCEDURAL HISTORY

White was found guilty of murder, a felony,1 following a jury trial and was sentenced to a presumptive fifty-year term. In White's direct appeal, we affirmed his conviction and sentence in an unpublished memorandum decision. See White v. State, 668 N.E.2d 726, No. 10A01-9504-CR-129 (Ind.Ct.App. July 22, 1996), trans. denied.

On April 10, 1997, the Clark County Public Defender filed in the Clark Circuit Court a motion to correct erroneous sentence pursuant to Ind.Code § 35-38-1-15, arguing White's sentence was erroneous because the sentencing statute applicable to White provided for a presumptive forty-year sentence instead of the fifty-year sentence White received.2 After a hearing, the trial court corrected White's sentence to reflect a presumptive forty-year sentence for murder.

On August 4, 1997, White filed a pro se petition for post-conviction relief, which he amended on January 10, 2002. The State filed a motion to dismiss arguing that White's prior motion to correct erroneous sentence had been a petition for post-conviction relief and, therefore, White's current petition for post-conviction relief was a successive petition for post-conviction relief. The State argued that the post-conviction court lacked jurisdiction to rule on the current petition because White had failed to seek leave of this court to file a successive petition for post-conviction relief under P-C.R. 1(12). The post-conviction court granted the State's motion to dismiss on June 28, 2002. White's motion to correct error was denied.

DISCUSSION AND DECISION

White argues the court erred in dismissing his petition for post-conviction relief as a successive petition. White contends that his previous motion to correct erroneous sentence should not be construed as a petition for post-conviction relief because it was filed pursuant to Ind.Code § 35-38-1-15 and did not comply with the requirements for petitions for post-conviction relief. Therefore, White argues, his current petition for post-conviction relief should not have been dismissed because it is not a successive petition requiring permission from this court.

The Indiana Rules of Appellate Procedure create procedures by which persons who have been convicted of crimes in Indiana may appeal those convictions. Bellamy v. State, 765 N.E.2d 520, 521 (Ind. 2002). If unsuccessful on appeal, there are procedures in place that allow the convicted person an opportunity to file a petition seeking post-conviction relief. Id.; see P-C.R. 1. If still unsuccessful, one of the avenues potentially open to the convicted person is to again seek post-conviction relief through a successive petition. Bellamy, 765 N.E.2d at 521; see P-C.R. 1(12). However, pursuant to P-C.R. 1(12), convicted persons filing successive petitions for post-conviction relief are required to

793 N.E.2d 1129
obtain leave from either the supreme court or this court before filing a successive petition in the post-conviction court. Waters v. State, 703 N.E.2d 688, 689 (Ind.Ct. App.1998), trans. denied. If a convicted person files a successive petition in the post-conviction court without obtaining such leave, the post-conviction court is required to dismiss the petition due to lack of jurisdiction. Id.

The issue in this case is whether White's motion to correct erroneous sentence should be considered a petition for post-conviction relief such that the subsequent filing of his current petition for post-conviction relief required authorization from this court. White argues that his motion to correct erroneous sentence was not a petition for post-conviction relief because it was filed pursuant to Ind.Code § 35-38-1-15 and was not verified as required by the post-conviction rules.

P-C.R. 1(1)(a) provides in pertinent part:

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 the maximum authorized by law, or is otherwise erroneous;
* * *
may institute at any time a proceeding under this Rule to secure relief.

P-C.R. 1(3) requires in part: "The petition shall be made under oath and the petitioner shall verify the correctness of the petition, the authenticity of all documents and exhibits attached to the petition, and the fact that he has included every ground for relief under Sec. 1 known to the petitioner."

White's motion to correct erroneous sentence was filed pursuant to Ind.Code § 35-38-1-15. That statute provides:

If the convicted person is erroneously sentenced, the mistake does not render the sentence void. The sentence shall be corrected after written notice is given to the convicted person. The convicted person and his counsel must be present when the corrected sentence is ordered. A motion to correct sentence must be in writing and supported by a memorandum of law specifically pointing out the defect in the original sentence.

A petition for post-conviction relief, not a motion to correct erroneous sentence, is the preferred procedure for presenting a sentencing error. Jones v. State, 544 N.E.2d 492, 496 (Ind.1989); Funk v. State, 714 N.E.2d 746, 748-49 (Ind.Ct.App. 1999), trans. denied. However, a motion to correct erroneous sentence pursuant to Ind.Code § 35-38-1-15 "is appropriate where the sentence is erroneous on its face and that facial error occurs when the sentence violates express statutory authority." Mitchell v. State, 726 N.E.2d 1228, 1243 (Ind.2000).

In Reffett v. State, 571 N.E.2d 1227, 1228-29 (Ind.1991), our supreme court discussed whether a motion to correct erroneous sentence was a proper method for challenging a sentence:

The State argues Reffett's appeal from the denial of his motion to correct sentence is the wrong way to attack his sentence.
...

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2 practice notes
  • Corcoran v. Buss, No. 3:05-CV-389 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 9 de abril de 2007
    ...setting aside, or correcting the conviction and sentence." Pursuant to long standing case law, [the most recent being White v. State, 793 N.E.2d 1127 (Ind.App.2003)] and the rules governing post-conviction relief requiring signature by the defendant and verification, the Court orders the Pe......
  • Robinson v. State, No. 45S03-0307-PC-314.
    • United States
    • Indiana Supreme Court of Indiana
    • 10 de março de 2004
    ...e.g., Reffett, 571 N.E.2d at 1228; Gee, 508 N.E.2d at 788; Hatchett v. State, 794 N.E.2d 544, 546 (Ind.Ct.App.2003); White v. State, 793 N.E.2d 1127, 1129 (Ind. Ct.App.2003); Funk v. State, 714 N.E.2d 746, 748-49 (Ind.Ct.App.1999); Poore v. State, 613 N.E.2d 478, 480 (Ind.Ct.App. 1993); Bro......
2 cases
  • Corcoran v. Buss, No. 3:05-CV-389 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 9 de abril de 2007
    ...setting aside, or correcting the conviction and sentence." Pursuant to long standing case law, [the most recent being White v. State, 793 N.E.2d 1127 (Ind.App.2003)] and the rules governing post-conviction relief requiring signature by the defendant and verification, the Court orders the Pe......
  • Robinson v. State, No. 45S03-0307-PC-314.
    • United States
    • Indiana Supreme Court of Indiana
    • 10 de março de 2004
    ...e.g., Reffett, 571 N.E.2d at 1228; Gee, 508 N.E.2d at 788; Hatchett v. State, 794 N.E.2d 544, 546 (Ind.Ct.App.2003); White v. State, 793 N.E.2d 1127, 1129 (Ind. Ct.App.2003); Funk v. State, 714 N.E.2d 746, 748-49 (Ind.Ct.App.1999); Poore v. State, 613 N.E.2d 478, 480 (Ind.Ct.App. 1993); Bro......

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