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09/03/87 CLYDE E. JORDAN v. STATE INDIANA

Filed: September 3, 1987.

CLYDE E. JORDAN, APPELLANT,
v.
STATE OF INDIANA, APPELLEE



APPEAL FROM THE MARION SUPERIOR COURT, CRIMINAL DIV. TWO, The Honorable Webster Brewer, Judge, Cause No. CR85-167B.

Miller, P.j., Conover, J., and Buchanan, J., Concur.

Author: Miller

MILLER, P.J.

Clyde E. Jordan appeals from the summary denial of his Petition for Post-Conviction Relief. He was found guilty by the trial court of Criminal Trespass, a Class A misdemeanor, and was sentenced to pay a $750.00 fine, make restitution, and to be placed on probation for one year or until the fine was paid. Jordan violated the terms of his probation and was committed to the Marion County Jail for one year. Jordan did not directly appeal his conviction or revocation of probation. Jordan argues the post-conviction court erred by failing to provide adequate time for his counsel to represent him on the issues raised in his pro se petition for post-conviction relief.

We reverse the trial court's denial of Jordan's Petition and remand with instructions to appoint counsel, to permit amendment of the petition, and to hold an evidentiary hearing, if warranted, on those issues of fact and law raised in Jordan's petition.

FACTS

Clyde E. Jordan was charged with one count of Burglary, a Class B felony, and was found guilty after a bench trial of Criminal Trespass, a Class A misdemeanor. Jordan was sentenced to one year probation and ordered to pay a $750.00 fine and make restitution. He was found to have violated his probation on July 3, 1986 and was sentenced to a term of one year incarceration at the Marion County Jail. Jordan did not directly appeal his initial conviction or the later revocation of his probation.

On October 6, 1986 Jordan filed a pro se Petition for Post-Conviction Relief with an attached Affidavit of Indigency indicating he desired the services of the Public Defender. Jordan's petition alleged the following errors were committed by the trial court at the Probation Violation hearing on July 3, 1986: (1) the sentence did not give credit for "time earned"; (2) certain evidence was not considered by the trial court; (3) Jordan's probation was "unlawfully revoked"; and (4) Jordan was inadequately represented by counsel. Record, p. 48-49. On October 10, 1986, the State filed its answer and a Motion to Dismiss Jordan's Petition with prejudice and without an evidentiary hearing on grounds of waiver because Jordan did not directly appeal his conviction or sentence. Record, p. 53-55. The Public Defender's Office received a copy of the State's Motion to Dismiss on October 14, 1986. The trial court apparently also forwarded a copy of Jordan's Petition to the Public Defender on October 10, 1986, but an affidavit accompanying Jordan's Motion to Correct Errors indicates this copy was not received by the Office of the State Public Defender until October 15, 1986. Record, p. 5-7. On October 14, 1986 the trial court issued a corrected Committment Order which granted Jordan credit for time earned. The following day, October 15, 1986, the trial court granted the State's Motion to Dismiss with prejudice.

On October 29, 1986, counsel entered an appearance on behalf of Jordan and filed a Motion for Leave to Withdraw his pro se Petition for Post-Conviction Relief without prejudice. Late that afternoon, Jordan's counsel received a phone call from the staff of Marion Superior Court, Criminal Division Two, informing her that the State's Motion to Dismiss the pro se Petition for Post-Conviction Relief had been granted by order of the court on October 15, 1986. On October 31, 1986, Jordan filed a Motion to Reconsider Dismissal. On November 6, 1986, pursuant to its Nunc Pro Tunc entry of October 15, 1986, the trial court granted the State's Motion to Dismiss with prejudice.[Footnote 1] It is from this

November 6, 1986 dismissal that Jordan now appeals.

ISSUE

Jordan raises two issues[Footnote 2] for consideration but we address only the first, which is dispositive:

Whether the trial court erred in granting summary dismissal of Jordan's pro se Petition for Post-Conviction Relief after referral to the Public Defender but before adequate time had elapsed for the Public Defender to ...


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