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Tuesday, April 01, 2008

Ind. Decisions - Supreme Court issues a third opinion today

In Theron W. Hunter v. State, a 7-page, 4-1 opinion, in a case argued Nov. 15, 2007, Justice Dickson writes:

The determinative issue in this case is whether there was sufficient evidence to support the revocation of the defendant's probation for violating a probation condition of disputed mean-ing. We conclude that the condition lacked sufficient clarity to provide the defendant with fair notice that the conduct at issue would constitute a violation of probation. * * *

The specific probation condition alleged to have violated required:

The defendant must never be alone with or have contact with any person under the age of 18. Contact includes face-to-face, telephonic, written, electronic, or any indirect contact via third parties. You must report any incidental contact with persons under age 18 to your probation officer within 24 hours of the contact.
This probation condition was expressly stated in the trial court's sentencing judgment. The trial court revoked probation, ordered the remaining sentence served, and imposed additional sanctions. The Court of Appeals affirmed by memorandum decision. Hunter v. State, 69C01-9912- CF-43 (Ind. Ct. App. June 21, 2007). We granted transfer and now reverse. * * *

If the trial court intended a condition of probation to prohibit the defendant from the be-havior shown by the evidence in this case, effective deterrence and fair advance notice necessi-tate that the choice of language must clearly describe the prohibited conduct. The probation condition in this case lacked sufficient clarity to provide the defendant with fair notice that the conduct at issue would constitute a violation of probation. * * *

Boehm and Rucker, JJ., concur.
Shepard, C.J., concurs in result.
Sullivan, J., dissents with separate opinion.

Posted by Marcia Oddi on April 1, 2008 03:02 PM
Posted to Ind. Sup.Ct. Decisions