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Monday, December 30, 2013

Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

In the Matter of the Termination of the Parent-Child Relationship of D.M. (Minor Child) and D.D. (Father) v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (4):

In State of Indiana v. Tammy Sue Harper (NFP), a 7-page opinion, Judge Mathias writes:

The State of Indiana appeals the order of the Tippecanoe Circuit Court modifying the sentence of Tammy Sue Harper (“Harper”). On appeal, the State claims that the trial court was without authority to modify Harper’s sentence because more than 365 days had passed since Harper was sentenced and the county prosecutor did not approve of the modification. We agree and reverse. * * *

Here, the deputy prosecuting attorney who appeared at the hearing did not seem to have much of an objection to the trial court’s desire to modify the sentence. Indeed, the prosecuting attorney said very little during the hearing. Nevertheless, the fact remains that the prosecuting attorney, through the deputy prosecuting attorney or otherwise, never actually approved of the sentence modification. Without such approval, the trial court lacked the statutory authority to modify Harper’s sentence.

This is not to say that we are not unsympathetic to the trial court’s position. The court specifically told the deputy prosecuting attorney that it would not modify Harper’s sentence if the State objected. The trial court also directed the prosecuting attorney to inform the trial court of whether it approved of or objected to the sentence modification. When no such objection or approval was forthcoming, and with what it considered to be a worthy defendant languishing behind bars, the trial court went ahead and modified Harper’s sentence. Only then did the State forcefully object.

We are not at liberty to ignore the clear language of the statute, which requires the approval of the prosecuting attorney to sentence modification that occurs outside the 365- day time limit. Here, the prosecuting attorney failed to give such approval, and the trial court was without authority to modify Harper’s sentence.

Rico Nathaniel Morst v. State of Indiana (NFP)

Jeremiah Joseph Skirvin v. State of Indiana (NFP)

George Williams v. State of Indiana (NFP)

Posted by Marcia Oddi on December 30, 2013 11:27 AM
Posted to Ind. App.Ct. Decisions