*1 NEVILLE, Appellant-Defendant, Allan Indiana, Appellee-Plaintiff.
STATE No. 49A02-9702-CR-118. Appeals of Fisher, Indianapolis, Appel- Michael R.
lant-Defendant. General, Modisett,
Jeffrey Attorney An- A. General, Hedges, Deputy Attorney L. drew Appellee-Plaintiff. Indianapolis, for OPINION FRIEDLANDER, Judge.
Allan Neville
from the denial of his
spent
request for credit for time
while on
presents
home detention. Neville
two issues
review,
dispositive
one of which is
appeal. We restate that
issue as follows:
authority
the trial court have
Did
under
permis-
Post-Conviction Rule
for an
sion to
probation?
a
from revocation
dismiss the
We
burglary
was convicted of
and sen-
years imprisonment,
tenced to six
with five
years suspended
remaining year
and the
community
in a
be served
corrections
gram
Upon
home
under
detention.
subse-
violation,
quent finding
probation
the court
an
modified the sentence to include
executed
probation
year,
years
term of one
with two
spent
and no credit
time
on home deten-
finding
probation
tion.
another
After
vio-
lation,
modified,
again
the sentence was
three-year,
time to a
term. Neville
executed
thereafter
for Credit Time
Petition
Served, requesting
and Time
that he be
for,
alia,
for time
served
inter
on home
The court
detention.
day
denied
on the same
it was
filed, January
6,1997,
a motion
On
Neville filed
to reconsider the
15 denial of his
That
motion for credit time.
motion was
10. On
denied
1997, Neville,
se,
filed both a Notice of
*2
297
Appeal regarding
the
of
probation,
his
cation of his
which is outside the
2(1).
praecipe.
purview
for credit
tíme and a
Also on
of P-C.R.
The trial court
13, 1997,
erroneously permitted
Neville filed a Verified
[the
to
defendant]
Appeal
Petition for Leave to Prosecute
as a
file a
praecipe.
belated
time,
including
Poor Person.
Until
and
State,
v.
Greer
685
at
N.E.2d
702. The court
mentioned,
filings previously
all of the
Ne-
2(1)
concluded that the amendment to P-C.R.
26,
proceeded pro
ville had
se. On
jurisdiction
removed the trial
per-
court’s
to
1997,
County Pauper Appeals
the Marion
mit
filing
appeals
the
of
anything
belated
for
appointed
represent
Panel
counsel to
Neville
appeals
other
than direct
of convictions.
5, 1997,
in the instant
On March
Further,
the court concluded that P-C.R.
counsel filed a Motion for Leave to File
2(1),
amended;
as
anything
removes
other
Praecipe.
Belated
The motion was
appeals
than direct
of convictions from the
appeal
and this
ensued.
subject
jurisdiction
matter
of the Indiana
Appeals,
Court of
appeals
unless those
or
appeal
An
prae
is initiated when a
petitions
brought pursuant
are
timely
to a
cipe is
in
trial
praecipe
filed
the
court. A
praecipe.
thirty days
must be filed within
of a final
case,
In the instant
2(A).
appeals
appealable
the
Ind.Appellate
order.
Rule
denial of his
for
motion
time. Al-
Failure to
praecipe
in
results
though Neville’s Motion for Credit for Time
appeal
dismissal of the
juris
because it is a
Spent
Cook,
Sentencing
Incarcerated Before
was
dictional failure. Moran v.
644 N.E.2d
15, 1997,
January
denied on
the
(Ind.Ct.App.1994).
1,
179
timeliness
January
Effective
pro
1994,
praecipe,
Neville’s
se
twenty-nine
an amendment to Ind.Post-Conviction
later,
days
is not related to
2
the date of the
permit
created
limited avenue for
15,1997
ruling on that
January
motion. The
ting
filing
praecipe.
the
of a belated
The
motion sought grant
of credit time for time
amendment
permit
authorizes trial courts to
prior
on home detention
to the Novem-
filing
the
of a
praecipe,
only
belated
but
“for
24,
ber
1992 revocation of
In
2(1).
appeal of the conviction.” P-C.R.
“As
effect; then,
'17,
January
the
1997 motion
such,
2(1) provides
P-C.R.
a method for
24,
challenge
amounted to a
to the November
seeking permission for belated consideration
order,
sentencing
1992
which failed to
conviction,
appeals addressing
but does
period
credit time for
question.
the
in
Ac-
permit
not
appeals
belated consideration of
cordingly,
thirty-day period
the
challeng-
post-judgment petitions.”
of other
Greer
ing the denial of credit
time for in-home
State,
(Ind.1997).
685 N.E.2d
702
detention
run
commenced to
on November
supreme
In
the
court decided the
24, 1992,
not
Obviously,
question which is before us in the instant
thirty-day period
the
a praecipe
file
ie.,
case,
whether “the
has
purpose
the
challenging
the denial of cred-
subject
jurisdiction
matter
over a belated
question
it time in
long
lapsed by
had
since
appeal from a trial court’s denial of credit
the time Neville
praecipe
filed his
se
following
probation.”
revocation of
State,
repro-
Greer v.
685
at
702. We
directly
Because Neville was not
duce below the court’s conclusion in that
conviction,
appealing his
the trial court was
regard:
subject
jurisdiction
without
permit
matter
The 1994 amendments transformed P-
filing
of a belated
and erred in
2(1)
C.R.
into a “vehicle for belated direct
Further,
doing.
so
this court does not have
appeals
such,
alone.” As
P-C.R.
subject
jurisdiction
matter
over what
seeking permission
vides a method for
amounts to an
of the November
belated consideration of
address-
time,
1992 denial of credit
because such was
conviction,
ing
permit
but does not
brought pursuant
not
timely praecipe.
to a
consideration of
post-judg-
other
State,
Therefore,
Greer v.
KIRSCH, J., concurs. SULLIVAN, J., separate concurs with opinion.
SULLIVAN, concurring. Judge, *3 ¡because by we are bound Greer v.
I concur (1997) Ind., re- with State appeals from a attempted belated gard to revocation of credit the view that am not of .1 relies, it upon which or the seminal case (1995) Ind., 653 N.E.2d Howard v. State prohibit all belated must be read except appeals from the from direct the 1994 amend- Although itself. conviction provides a belated ment to the P.C. itself, conviction it does from the in other necessarily preclude appropriate situations. date, the thrust I case law to
As read the underlying policy consideration persons, is that who legal principle involved have through fault of their own been no appeal, may unable to effect a direct relief, belatedly. I-there- be afforded albeit Howard, nor its fore neither that conclude progeny, preclude a belated direct appealable judgments as such final and from probation, as judgment itself revokes which opposed which denies credit time to an order following a revocation. WADE, Jacqueline Amanda Bookout Penny Stine, Bookout, Krystle Bookout, Stine, Appel- Brittney Stine, and Jessica lants-Plaintiffs, NORFOLK AND WESTERN RAILWAY
COMPANY, and The Board of Commis- County, Indiana, Tippecanoe sioners of Appellees-Defendants.
No. 79A02-9708-CV-504.