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Friday, December 10, 2010

Ind. Decisions - Court of Appeals issues 2 today (and 3 NFP)

For publication opinions today (2):

In David Snowberger v. State of Indiana , an 8-page opinion, Judge Brown concludes:

The State specifically agreed in Snowberger’s plea agreement on August 19, 2009 that his probation would not be revoked unless his failure to pay support under Cause No. 58 was “proven to be willful” and that Snowberger “has the ability to make said payment(s).” The Cass County Probation Department, through its probation officer Haney, filed a violation of probation notice on September 29, 2009—just forty-one days after Snowberger agreed to the terms of the plea agreement. Snowberger’s failure to pay child support during the period from August 19, 2009 to September 28, 2009 as alleged in the violation notice does not show that the failure was willful or that Snowberger had the ability to make the support payments. Absent additional evidence regarding Snowberger’s willful failure to pay child support or his ability to make payments during that period of time, we are unable to say that the evidence supports the court’s determination. Based upon our review of the testimony and other evidence presented at the probation revocation hearing as set forth in the record, we conclude that the evidence was insufficient to revoke Snowberger’s probation. Reversed.
In G.D. v. Review Board , a 7-page opinion, Judge Kirsch writes:
G.D. challenges as contrary to law the Review Board's order affirming the Director's denial of his motion to reinstate his appeal. The Review Board did not hold a hearing and did not receive additional evidence in reaching its determination. Instead, the Review Board adopted and incorporated by reference the findings of fact and conclusion of law of the ALJ. * * *

In the absence of an evidentiary hearing during which an ultimate determination of basic or ultimate facts on this issue is made, we are unable to determine whether G.D. made substantial efforts to comply with the requirement that he return the participation slip with his telephone number. Accordingly, we remand this matter to the Review Board for further proceedings, and instruct the Review Board to conduct a hearing limited to the issue of whether G.D. made substantial efforts to comply with the requirement that he return the participation slip with his telephone number in order to obtain his hearing. Reversed and remanded for further proceedings consistent with this opinion.

NFP civil opinions today (0):

NFP criminal opinions today (3):

Jonathon L. Dillard v. State of Indiana (NFP)

Carlene L. Henry v. State of Indiana (NFP)

Tommie Reives v. State of Indiana (NFP)

Posted by Marcia Oddi on December 10, 2010 11:30 AM
Posted to Ind. App.Ct. Decisions