Tuesday, May 05, 2009
Ind. Decisions - Supreme Court issues one today
In Samuel Hardley v. State of Indiana, an 11-page, 3-2 opinion, Justice Dickson writes:
To address conflicting opinions from the Court of Appeals and to consider the import of recent decisions of this Court, we grant transfer and hold that the State may challenge the legality of a criminal sentence by appeal without first filing a motion to correct erroneous sentence, and that such appeal need not be commenced within thirty days of the sentencing judgment. * * *
Shepard, C.J., and Sullivan, J., concur.
Boehm, J., dissents with separate opinion in which Rucker, J., concurs. [The dissent begins] I respectfully dissent. The majority holds that the State may challenge what it contends to be an illegal sentence by raising the issue in its appellee’s brief in the Court of Appeals, even though the issue was never presented to the trial court. I agree that longstanding precedent permits the State to raise sentencing errors in a cross-appeal of a defendant’s direct appeal. Stephens v. State, 818 N.E.2d 936, 940 (Ind. 2004) (citing Rogers v. State, 270 Ind. 189, 191, 383 N.E.2d 1035, 1036 (1979)); Ind. Appellate Rule 7(A). However, I would not permit the State to appeal an erroneous sentence without first raising the issue in the trial court.
Posted by Marcia Oddi on May 5, 2009 03:24 PM
Posted to Ind. Sup.Ct. Decisions