Tuesday, March 05, 2013
Ind. Decisions - Late this afternoon, a second opinion from the Supreme Court
In Kimberly Heaton v. State of Indiana, a 6-page, 5-0 opinion, Chief Justice Dickson writes:
The defendant-appellant, Kimberly Heaton, challenges the trial court's revocation of her probation and its order that she serve eighteen months of her previously suspended twenty-four month sentence. Heaton's appeal raises the question of what legal standard is to be applied in a probation revocation proceeding where the State claims that the probationer committed a new criminal offense while on probation. We hold that the correct legal standard is the statutorily- mandated preponderance of the evidence standard. * * *
Because it is unclear which standard the trial court used in this instance, we remand the case to the trial court for reconsideration of whether the defendant violated her probation and if so, what sanction, if any, is appropriate.
Conclusion. We vacate the trial court's order finding that the defendant violated her probation and or-dering her to serve a portion of her previously suspended sentence. This cause is remanded for a new determination of whether the defendant violated the conditions of her probation by a pre-ponderance of the evidence pursuant to Indiana Code Section 35-38-2-3(e) (2008) and, if so, the appropriate sanction for such violation.
Posted by Marcia Oddi on March 5, 2013 05:44 PM
Posted to Ind. Sup.Ct. Decisions