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Wednesday, September 12, 2012

Ind. Decisions - Opinion today explains Davis-Hatton procedure

This Sept. 10th ILB entry attempted to explain Charlie White's filing of an appeal, followed by a petition for PCR:

[T]he COA granted a Davis Petition on Friday, so the appeal has been dismissed for further proceedings in the trial court. Here is the Sept. 7th COA Order. In short, the direct appeal has been dismissed without prejudice so White can file a petition for post-conviction relief. Once the trial court rules on the PCR petition, then White can appeal the issues arising from, relating to the PCR and the issues he would have raised in his direct appeal.
Today's in an unrelated case, Jerry L. Kindred v. State of Indiana, Judge Vaidik gives a much better explanation of the use of the procedure on page 1 of the opinion:
Kindred filed an appeal but later sought a stay of that appeal to pursue post-conviction relief, alleging ineffective assistance of counsel. Kindred now appeals the denial of his request for post-conviction relief and reinstates his direct appeal utilizing the Davis-Hatton procedure.[1]
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[1] The Davis-Hatton procedure involves a termination or suspension of a direct appeal already initiated, upon appellate counsel’s motion for remand or stay, to allow a post-conviction relief petition to be pursued in the trial court. State v. Lopez, 676 N.E.2d 1063, 1069 (Ind. Ct. App. 1997) (citing Hatton v. State, 626 N.E.2d 442 (Ind. 1993), trans. denied; Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977)). See also Ind. Appellate Rule 37(A) (“At any time after the Court on Appeal obtains jurisdiction, any party may file a motion requesting that the appeal be dismissed without prejudice or temporarily stayed and the case remanded to the trial court . . . for further proceedings. The motion must be verified and demonstrate that remand will promote judicial economy or is otherwise necessary for the administration of justice.”).

Posted by Marcia Oddi on September 12, 2012 01:57 PM
Posted to Ind. App.Ct. Decisions