Willis v. State, No. 64A03-8604-CR-101

Docket NºNo. 64A03-8604-CR-101
Citation492 N.E.2d 45
Case DateApril 29, 1986
CourtCourt of Appeals of Indiana

Page 45

492 N.E.2d 45
David A. WILLIS, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 64A03-8604-CR-101.
Court of Appeals of Indiana,
Third District.
April 29, 1986.

Page 46

Gary K. Matthews, Enslen, Enslen & Matthews, Hammond, and Christopher Kirages, Indianapolis, for appellant.

Michael Gene Worden and Gary Damon Secrest, Indianapolis, for the State.

GARRARD, Judge.

This case comes before us on appellant's petition to be let to bail pending appeal. The pertinent statute, IC 35-33-9-1, provides:

"A person convicted of an offense who has appealed or desires to appeal the conviction may file a petition to be admitted to bail pending appeal. The person may be admitted to bail pending appeal at the discretion of the court in which the case was tried, but he may not be admitted to it if he has been convicted of a class A felony or a felony for which the court may not suspend the sentence under IC 35-50-2-2."

The trial court denied Willis' petition, and he has now applied to this court pursuant to Indiana Rules of Procedure, Appellate Rule 6(B). The threshhold question is whether this court is empowered to grant relief.

It is well recognized that the right to bail pending appeal is not required by the constitution. It is, therefore, a matter of legislative grace. In re. Pisello (1973), 155 Ind.App. 484, 293 N.E.2d 228; Ex Parte Pettiford (1933), 97 Ind.App. 703, 167 N.E. 154.

Accordingly, the authority of the courts to grant such bail is limited to the authority granted by statute. In Ex Parte Huffman (1914), 181 Ind. 241, 104 N.E. 511 the Supreme Court held it was without authority to order Huffman admitted to bail when at the time of his application he had not yet filed a motion for new trial. The court read the statute in force at the

Page 47

time as permitting bail only after a motion for new trial had been denied. 1

Similarly, in State ex rel. Scott v. Joseph Sup. Ct. (1980), 274 Ind. 605, 413 N.E.2d 565 the court held it was without authority to mandate the trial court to consider affording bail pending appeal. Scott stood convicted of murder and pursuant to IC 35-50-2-2(b) was not eligible for a suspended sentence. The applicable statute, IC 35-4-6-1.5 [Repealed], prohibited bail pending appeal in such instances.

The present statute which is applicable to Willis' claim was enacted as Acts 1981, P.L. 298, Sec. 2 and is nearly identical to the 1979 version which was before the court in Scott. 2

Prior to 1979 the statute excluded only murder from possible bail pending appeal. More significantly for our present inquiry, the prior version directed that eligible petitions "shall be admitted to bail pending appeal upon compliance with this chapter." IC 35-4-6-1 [Repealed]; Scott, supra.

The 1979 amendment which was carried forward to the present statute changed the prior scheme by expressly stating that bail pending appeal was to be discretionary. Clearly, the implication of this change is that in appropriate circumstances bail pending appeal might be denied although the party appealing was not among the category of persons to whom bail pending appeal was prohibited.

This grant of discretion provides the necessary authority to the courts to satisfy the requirements of Scott and Huffman unless the statute should be read as vesting that discretion solely in "the court in which the case was tried." We conclude the...

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10 practice notes
  • Bailey v. Menzie, No. 20A03-8806-CV-195
    • United States
    • Indiana Court of Appeals of Indiana
    • 24 Agosto 1989
    ...we will embrace an interpretation that renders a statute, or amendment thereto, constitutional. Willis v. State (1986), Ind.App., 492 N.E.2d 45. Thus we must endeavor to construe Acts 1987, P.L. 293 Sec. 7 so as not to render it "obnoxious to constitutional prohibitions." State v. Rice (195......
  • Lincoln v. Board of Com'rs of Tippecanoe County, No. 79A04-8610-CV-315
    • United States
    • Indiana Court of Appeals of Indiana
    • 22 Julio 1987
    ...an interpretation of a statute that renders it constitutional and fully implements its provisions. Willis v. State (1986), Ind.App., 492 N.E.2d 45. We hold here that the "date the executive decision was made" pursuant to I.C. 36-2-2-27 is the date the Board posted notice of its final decisi......
  • Herriman v. Conrail, Inc., No. 1:94-CV-232.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 24 Febrero 1995
    ...renders it constitutional and fully implements its provisions in matters of statutory construction. Willis v. State (1986), Ind.App. 492 N.E.2d 45. In construing a statute to ascertain the intent of the Legislature the Court should consider the object or purpose of the statute and the evils......
  • Tyson v. State, No. 49S02-9204-CR-311
    • United States
    • Indiana Supreme Court of Indiana
    • 24 Abril 1992
    ...trial court the exclusive power to determine whether a petitioner should be let to bail pending appeal. Willis v. State (1986), Ind.App., 492 N.E.2d 45. IV. Standards for Considering Bail on We now turn to the standard which appellate courts should apply when considering a request for bail ......
  • Request a trial to view additional results
10 cases
  • Bailey v. Menzie, No. 20A03-8806-CV-195
    • United States
    • Indiana Court of Appeals of Indiana
    • 24 Agosto 1989
    ...we will embrace an interpretation that renders a statute, or amendment thereto, constitutional. Willis v. State (1986), Ind.App., 492 N.E.2d 45. Thus we must endeavor to construe Acts 1987, P.L. 293 Sec. 7 so as not to render it "obnoxious to constitutional prohibitions." State v. Rice (195......
  • Lincoln v. Board of Com'rs of Tippecanoe County, No. 79A04-8610-CV-315
    • United States
    • Indiana Court of Appeals of Indiana
    • 22 Julio 1987
    ...an interpretation of a statute that renders it constitutional and fully implements its provisions. Willis v. State (1986), Ind.App., 492 N.E.2d 45. We hold here that the "date the executive decision was made" pursuant to I.C. 36-2-2-27 is the date the Board posted notice of its final decisi......
  • Herriman v. Conrail, Inc., No. 1:94-CV-232.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 24 Febrero 1995
    ...renders it constitutional and fully implements its provisions in matters of statutory construction. Willis v. State (1986), Ind.App. 492 N.E.2d 45. In construing a statute to ascertain the intent of the Legislature the Court should consider the object or purpose of the statute and the evils......
  • Tyson v. State, No. 49S02-9204-CR-311
    • United States
    • Indiana Supreme Court of Indiana
    • 24 Abril 1992
    ...trial court the exclusive power to determine whether a petitioner should be let to bail pending appeal. Willis v. State (1986), Ind.App., 492 N.E.2d 45. IV. Standards for Considering Bail on We now turn to the standard which appellate courts should apply when considering a request for bail ......
  • Request a trial to view additional results

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