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Friday, July 30, 2010

Ind. Decisions - Same opinion twice, or a subtle difference? [Updated twice]

Today's opinion in Gosha v. State appears to be identical to this May 28, 2010 opinion of the same name. See ILB entries here and here.

Ironically, this was the opinion singled out by Judge William Menges Jr. in his interview on July 7th for the Supreme Court vacancy.

Thanks to Prof. Schumm for the heads up.

[Updated at 4:17 PM] Apparently, a subtle difference. This sentence was added at the end of footnote 2:

However, to the extent that Gosha’s participation in the Drug Court program was a condition of his probation, any violation of probation and sanctions hearing shall be conducted by the trial court.
[Updated 7/31/10] I received further clarification yesterday, but hadn't gotten to it until now:
In response to your post on the ILB about the Gosha v. State opinions, the whole footnote 2 is different and not just the last sentence.

The new version appears to address the State's argument made in its petition for rehearing (oddly enough denied on July 27) that the drug court statute vests jurisdiction in the drug court, and not the trial court, to terminate participants in a program. See attached.

I don't remember the Indiana Court of Appeals substituting a new opinion for a prior one after denying rehearing like what happened here. It's a not an unheard of practice among the federal circuits (including the 7th), though. It's an interesting development.

ILB - And confusing, IMHO, particularly since there is no indication.on the opinion(s) of what has occurred.

There is explanation in the docket -- I don't know that this was available yesterday morning, but it is now:

DATE TEXT
5/28/10 ISSUED THE ENCLOSED OPINION:
5/28/10 2010 TERM
REVERSED AND REMANDED WITH INSTRUCTIONS---------NAJAM, J.
VAIDIK, J., AND BROWN, J., CONCUR.
6 PAGES KJ 5/28/10
5/28/10 ****** ABOVE ENTRY MAILED ******
6/28/10 APPELLEE'S PETITION FOR REHEARING (9) CERTIFICATE OF
SERVICE (9) BY MAIL 6-28-10 LH 6-29-10
7/13/10 APPELLANT'S BRIEF IN RESPONSE TO REHEARING (9) CERTIFICATE
OF SERVICE (9) BY MAIL 07/13/10 ENTERED ON 07/16/10 AS
7/26/10 ISSUED THE ENCLOSED ORDER:
7/26/10 HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS THAT
APPELLEE'S PETITION FOR REHEARING IS DENIED.
FOR THE COURT, JOHN G. BAKER, CHIEF JUDGE
NAJAM, VAIDIK, BROWN, JJ., CONCUR.
(ORDER REC'D 07/27/10 AT 10:15 A.M.) ENTERED ON 07/27/10 KJ
7/27/10 ****** ABOVE ENTRY MAILED ******
7/30/10 0024248-53; EMAIL ADDRESS PREVIOUSLY CONFIRMED FOR
ATTORNEY JOBY DEE JERRELLS
7/30/10 0001958-98; EMAIL ADDRESS PREVIOUSLY CONFIRMED FOR
ATTORNEY GREGORY FRANCIS ZOELLER
7/30/10 ISSUED THE ENCLOSED ORDER:
7/30/10 HAVING REVIEWED THE MATTER, THE COURT FINDS AND ORDERS AS
FOLLOWS:
1. ON ITS OWN MOTION, THIS COURT HAS DETERMINED THAT THE
MAY 28, 2010 OPINION MARKED OPINION-FOR PUBLICATION IS VACATED,
WITHDRAWN, AND HELD FOR NAUGHT.
2. IN CONJUNCTION WITH THIS ORDER, THIS COURT IS REISSUING
AN OPINION IN THIS APPEAL ON JULY 30, 2010. THUS, THE TIME
PERIODS FOR FILING REHEARING OR TRANSFER SHALL COMMENCE AS OF
THE DATE OF ISSUANCE OF THE NEW DECISION/OPINION ON APPEAL AND
IN ACCORDANCE WITH THE INDIANA APPELLATE RULES.
3. THE CLERK OF THIS COURT IS DIRECTED TO SEND A COPY OF
THIS ORDER TO ALL PARTIES AND COUNSEL OF RECORD, THE TRIAL
COURT, WEST/THOMSON/REUTERS, LEXIS, ALL OTHER SOURCES TO WHICH
DECISIONS/OPINIONS OF THIS COURT ARE SENT, AND THE MADISON
CIRCUIT AND SUPERIOR COURTS CLERK.
FOR THE COURT, JOHN G. BAKER, CHIEF JUDGE
NAJAM, VAIDIK, BROWN, JJ., CONCUR.
(ORDER REC'D. 7/30/10 AT 9:30 A.M.) ENTERED 7/30/10 KM
7/30/10 ****** ABOVE ENTRY MAILED ******
7/30/10 ISSUED THE ENCLOSED OPINION:
7/30/10 2010 TERM
REVERSED AND REMANDED WITH INSTRUCTIONS ---- NAJAM, J.
VAIDIK, J. AND BROWN, J. CONCUR.
6 PAGES
ENTERED 7/30/10 KM
7/30/10 ****** ABOVE ENTRY MAILED ******

Posted by Marcia Oddi on July 30, 2010 03:27 PM
Posted to Ind. App.Ct. Decisions