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Murphy v. State

Court of Appeals of Indiana

October 31, 2018

Damien D. Murphy, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Tippecanoe Superior Court The Honorable Laura W. Zeman, Judge Trial Court Cause No. 79D04-1608-CM-2925

          Attorney for Appellant Robert J. Little Lafayette, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana, Andrew Kobe Deputy Attorney General Indianapolis, Indiana

          PYLE, JUDGE.

         Statement of the Case

         [¶1] In this interlocutory appeal, Damien Murphy ("Murphy") appeals the trial court's denial of his motion to dismiss two petitions to revoke his probation, which were both filed after his probationary period had ended. He argues that the trial court does not have authority to hold a revocation hearing and make a final determination on any allegation within the revocation petitions because the trial court did not toll his probation pursuant to the tolling provision in the probation revocation statute.

         [¶2] We conclude that the tolling provision in the revocation statute does not apply to the facts of this case and note that the probation revocation statute sets out the trial court's authority for holding a revocation hearing and entering a determination on a probation allegation in a timely-filed revocation petition. Because the first revocation petition was timely filed and the second revocation petition was not, we affirm the trial court's denial of Murphy's motion to dismiss the first revocation petition, reverse the trial court's denial of Murphy's motion to dismiss the second revocation petition, and remand for further proceedings on the first revocation petition.

         [¶3] We affirm in part, reverse in part, and remand.

         Issue

         Whether the trial court abused its discretion by denying Murphy's motion to dismiss the two probation revocation petitions.

         Facts

         [¶4] On October 11, 2016, Murphy entered into a plea agreement and pled guilty as charged to Class B misdemeanor possession of marijuana. That same day, the trial court, pursuant to the plea agreement, sentenced Murphy to "180 days, suspended upon timely and satisfactory completion of all terms and conditions of [unsupervised] probation[, ]" which included, among other conditions, the requirement to "[c]ontinue school at the Excel Center to obtain high school diploma and provide proof to [the] court." (App. Vol. 2 at 11, 12). Under Murphy's plea agreement, he also had a probation term requiring him to pay for court services and attend drug and alcohol evaluations within six months. The trial court set a probation review hearing for May 25, 2017, at which time Murphy was "to bring written proof of [the] completion of all probation requirements." (App. Vol. 2 at 12).

         [¶5] When Murphy appeared at the probation review hearing on May 25, 2017, he had apparently not completed all of his probation requirements.[1] That same day, the State filed a petition to revoke Murphy's probation ("First Probation Revocation Petition"), alleging that Murphy had violated probation by: (1) failing to "[c]omplete all Court Services requirements for drug and alcohol evaluation, fees, referral, etc.[;]" and (2) failing to provide "[p]roof of Excel completion[.]" (App. Vol. 2 at 13). The trial court conducted an initial hearing on the petition that same day. The trial court did not issue a warrant or summons.

         [¶6] Shortly thereafter, on July 6, 2017, the State filed another petition to revoke probation ("Second Probation Revocation Petition"), alleging that Murphy had violated probation by "failing to maintain good and lawful behavior." (App. Vol. 2 at 20. Specifically, the State alleged that "on or about June 28, 2017, [Murphy] committed the offenses of Dealing in a narcotic Drug, Possession of a Narcotic Drug, Resisting Law Enforcement, Operating While Intoxicated Endangering a Person, ...


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