Preview:

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: ANNA E. ONAITIS Marion County Public Defender Agency Indianapolis, Indiana

FILED
Apr 22 2008, 10:10 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General Of Indiana ARTHUR THADDEUS PERRY Special Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
HYTHORIS BEARD, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A05-0711-CR-615

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Heather Welch, Judge Cause No.49F09-0603-FD-44531

April 22, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issue Hythoris Beard appeals from the trial court's order revoking his probation and requiring him to serve the remainder of his previously suspended sentence. Beard raises the sole issue of whether the trial court abused its discretion in ordering Beard to execute the entirety of his previously suspended sentence. Concluding that the trial court acted within its discretion, we affirm. Facts and Procedural History On March 10, 2006, the State charged Beard with criminal recklessness, a Class D felony, and carrying a handgun without a license, a Class A misdemeanor. On January 24, 2007, Beard pled guilty to criminal recklessness, and the State dismissed the handgun charge. The trial court sentenced Beard to serve 365 days, 361 of which the trial court suspended to probation. On March 30, 2007, the State filed a motion for sentence modification, requesting that Beard be required to participate in a substance abuse evaluation and comply with recommended treatment, verify his employment search, and make monthly payments for probation fees. On April 4, 2007, the trial court granted this motion. On June 15, 2007, the State filed a notice of probation violation alleging that Beard failed to report, failed to attend a substance abuse evaluation, failed to report for a drug test, and failed to make payments. On June 20, 2007, the trial court held a hearing and took the matter under advisement. Beard failed to appear at a subsequent hearing and the trial court issued a warrant for Beard's arrest. On August 14, 2007, the trial court held a second hearing on the State's June 15 notice. At this hearing, Beard admitted to the first three allegations,

2

and the trial court ordered Beard to serve twenty days of his previously suspended sentence followed by continued probation. On September 6, 2007, the State filed another notice of probation violation, alleging that Beard failed to attend a substance abuse evaluation, failed to submit to a scheduled drug test, and failed to make payments. On September 18, 2007, the trial court held a hearing, at which Beard admitted to the first two allegations. The trial court revoked Beard's probation and ordered him to serve 310 days, the remainder of his previously suspended sentence. Beard now appeals. Discussion and Decision I. Standard of Review A trial court's authority to sentence a defendant following a probation violation is governed by statute. If the court finds that the person has violated a condition at any time before termination of the period, and the petition to revoke is filed within the probationary period, the court may: (1) continue the person on probation, with or without modifying or enlarging the conditions; (2) extend the person's probationary period for not more than one (1) year beyond the original probationary period; or (3) order execution of all or part of the sentence that was suspended at the time of the initial sentencing. Ind. Code

Download Hythoris Beard v. State of Indiana.pdf

Indiana Law