Damien D. Murphy, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
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,
of the Case
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.
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
We affirm in part, reverse in part, and remand.
the trial court abused its discretion by denying Murphy's
motion to dismiss the two probation revocation petitions.
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).
When Murphy appeared at the probation review hearing on May
25, 2017, he had apparently not completed all of his
probation requirements. 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.
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, ...