553 N.E.2d 488 | Ind. Ct. App. | 1990
C.B. appeals from the denial of her Trial Rule 60 motion. C.B. chose that method to challenge the trial court’s revocation of her probation. We reverse and remand.
C.B. does not contest the trial court’s delinquency finding. C.B. had previously admitted the allegations of battery and truancy
On March 28, 1989 C.B., with the assistance of an attorney from the public defender’s office, moved the court, pursuant to Trial Rule 60(B), to vacate its dispositional order on the grounds that C.B. had been deprived of her constitutional right to counsel at the probation revocation hearing. Although the record is unclear, it appears that the court addressed C.B.’s motion on the merits rather than on procedural grounds. See R. pp. 38, 50. The procedural question was whether TR 60 was the appropriate means to challenge the court’s November 29, 1988 order. After ruling on the procedural matter in C.B.’s favor, the trial court apparently denied her TR 60 motion on the merits. In that motion C.B. had challenged the deprivation of counsel and the severity of the court’s dispositional order. C.B.’s appeal presents those same two issues. In addition, the state has challenged the trial court’s ruling that TR 60 is applicable.
DISCUSSION
In a series
C.B. relies upon Chief Justice Shepard's concurrence in the court’s denial of Jordan’s petition for rehearing. Therein the chief justice concluded that a means of redressing issues such as those presented here should be available and suggested that a Trial Rule 60 motion is the appropriate instrument. Jordan, supra, 516 N.E.2d at 1055. Both juvenile delinquency proceedings and probation revocation proceedings are considered to be civil matters. See, e.g., Jordan, supra, 516 N.E.2d at 1054 (Shepard, C.J. concurring); Payne v. State (1987), Ind.App., 515 N.E.2d 1141, 1144. Thus, the trial court’s decision to reach the merits of C.B.’s motion as submitted in accordance with the trial rules was correct.
Under Indiana law, a probationer is entitled to counsel at the statutorily required hearing on a petition alleging the violation of a condition of probation. IC 35-38-2-3(d). Similarly, a juvenile probationer is, under Indiana case law, entitled to be informed of her right to have an attorney appointed to represent her at any probation revocation hearing if she cannot afford to hire one. In the Matter of Jennings (1978), 176 Ind.App. 277, 375 N.E.2d 258. The trial court erred in failing to so inform C.B.. The state has neither sufficiently distinguished nor assailed our holding in Jennings to warrant our ruling otherwise.
Having concluded that this matter must be remanded for a counseled hearing on the probation revocation petition, it is unnecessary to address C.B.’s second issue.
Reversed and remanded.
. See IC 20-8.1-3-17.
. See Jordan v. State (1986), Ind.App., 499 N.E.2d 759 (Conover, J. dissenting), vacated (1987), Ind., 512 N.E.2d 407 (DeBruler and Dickson, JJ., dissenting), rehearing denied 516 N.E.2d 1054 (Shepard, C.J. concurring; DeBruler and Dickson, JJ. dissenting).