State Ex Rel. Gash v. Morgan County Superior Court
283 N.E.2d 349
Ind.
1972
Check Treatment

*1 pointless procedural in order eliminate obstacles conviction of thieves and swindlers. Specifically, all purpose it is this act consolidate robbery, except group theft crimes traditional

terminology purpose that that been abandoned order Consequently, ‘lar- be achieved. whenever the terms ‘embezzlement,’ ‘obtaining ceny,’ pretenses,’ ‘receiv- false stolen,’ concealing ing knowing property have been any existing ‘blackmail,’ pro- con- or similar terms are used they rule, cedural or substantive strued to shall statute or mean theft as described herein.” accordingly. In language interpret act compels This us to legislative intent, in this we find view of the “raised check” to obtain appellant used a evidence scope of the money purview and statute is within prop- “unauthorized control [of it a crime obtain makes [M]oney erty . . .” as stated wit: an ... owner] brought charge nar- charge. under the more rowly specified acts therein. stated find offense and we

Appellant an was found insufficiency evidence of crime there no variance charged. (1955), 234 Ind. Madison State v. N. E. 2d judgment of court is affirmed. the trial JJ.,

DeBruler, Hunter, Givan, Prentice, concur. Reported E. in 282 N. 2d 548. Note. — Morgan Superior ex rel. Gash State Judge. Littell, May 25, 1972.] Filed 671S158. [No. *2 Samper, Jr., Samper

Ferd Samper, Indianapolis, and for relator. Littell,

Honorable Noble K. Martinsville, respondent. petition J. This matter is before on a us Prentice, having writ of mandate and return thereto. Court having arguments reviewed same and heard of counsel took the heretofore matter under advisement. And the Court being fully petitioner now advised now finds for and that said writ should issue. IS, CONSIDERED, THEREFORE,

IT ADJUDGED and Morgan respondents, DECREED County Superior Littell, Court and The Noble K. Honorable Judge thereof, set aside its order of revocation and com- expunge mitment entered heretofore such entries in said cause as exist its order book reflecting revocation 9,nd eommitment, guilty previously plea crime had

Relator entered a respondent Upon .disorderly plea conduct court. days the relator was sentenced to 180 at the State Farm suspended “upon and fined sentence was $10.

behavior of the defendant.” Morgan County

Subsequently prosecuting attorney alleging petition to revoke filed a shotgun of one and threatened had drawn relator hearing judge respondent conducted a Fount Brock. attorney’s petition prosecuting revoke following was revoked rela- days. committed to the Indiana State Farm for 180 tor ordered to recall his commitment Relator seeks a writ of mandate revoking expunge the entries of his sentence. proceed- questions presented research of the Our these brings unequivocally following ings us conclusions: *3 the rev- Indiana, (1) of In sentences by governed exclusively statute. ocation thereof law, is, by statutory a at- (2) condition behavior Good although sentence; and, every a court suspended tendant to conditions, of may the use impose additional reasonable nothing of an order adds to “upon behavior” words suspension. by law, means behavior con- (3) behavior Good refraining of forming law, crim- from the commission to i.e. inal offenses. only by rea- be revoked (4) A proba- specified attached terms to of violation of son a criminal of a offense. the commission

tion or for of an- is the commission for revocation (5) the basis If prior been determination must have a there other of respect guilt thereto. with directly appear to ruled question not have been does The although state, is some there upon in this jurisdictions passing majority upon of contrary, vast may not, in the absence that courts held question have of suspend a a sentence upon conditioned holding of the defendant. The decisions so predicated been theory that a sentence in crim- inal case should be definite dependent and certain and not upon any contingency 2d, p. condition. 21 Am. Jur. Law, Criminal It 560. early was so held in Indiana as State, 1819. Morris v. 1 Blackford 37.1 1. Sentences criminal cases should be definite and certain and not dependent contingency, condition or and where no statute is it, found to authorize State v. uncertainty. sentence in the alternative is bad for Sturgis, al., Sup. et (1912), Jud. Ct. of Maine 85 A. 474. The imprisonment, defendant sentenced to and it was “further operation ordered the court that of this sentence shall be sus pended during such time keep peace as the defendant shall all with mankind, and unnecessary desist intoxicating from all liquor, use becoming refrain from authorized intoxicated.” The was held to be un Strickler, In Re law. 5 Kan. 33 P. 620. pay The defendant was sentenced to days a fine and to work 30 streets, provision, the go promise “Sentence on his again.” paid this house Defendant Subsequently the fine and costs. suspension. the trial court reviewing revoked the court reversed the corpus. Citing lower court’s denial of habeas Wiggins, Tanner v. 54 Fla. Sturgis, supra, 45 So. 459 and State v. the court said: question “Whenever the has arisen passed on, and been it has been decided, practically dissent, without passing sentence on a convicted of an provide offense the court has no the im- prisonment begin future, the defendant shall time, at some indefinite depending happening contingency.” on the Acknowledging cases contrary, pointed 250-254, to 8 R.C.L. wherein it is said that such stays clusively pardoning power involve the exercise of the which is ex- confined to the Daley executives and not be exercised the courts. City Decatur, App. Ct. of Ala. 90 So. additional cases (NS) are collected at 33 LRA Supreme Mississippi Court of in 1912 held that a court had no power, good otherwise, inherent or during execution of a sentence pointed behavior. It was out that no such had been conferred by the constitution or statutes of State, this state. Fuller v. 57 So. 806. Supreme States, Court of the United with reference to the au- thority suspend sentences, of federal reviewing courts to after the laws acknowledging states and practice the several the existence of such a in some said: of the districts “* * * *4 case, Albeit this is we saying can see no reason for that right hold practice we is now that the exists to continue a Constitution, exercise, with inconsistent since its very in the things, judicial power nature of amounts to a refusal per- to duty resting upon it, and, consequence thereof, form a as a to an legislative authority interference with both the and executive as fixed * * *” States, the Constitution. Ex Parte 27, United 242 U. S. Ct. 61 L. Ed. 145. 37 S.

489 sentences, suspend authority to Indiana courts The grant stays authority to which is not to be confused with its exclusively by governed judicial functions, in aids of its is Attorney Opinions properly in- To 1961 General statute. acquaint appropriate ourselves terpret statutes, it is such legislative enactment, prior with the law as it existed to the requires of this this us to examine decisions and to do subject prior to such enactments and deci- Court operating of sister states without benefit of statutes. sions that in the absence of Court held this In dependent judgment and must not be is rule decision, contingency, subject to future but or State, supra. Morris final. certain and must be County Superior of Marion Court held that In we authority suspend sentence of the convicted was without age twenty-one, under defendant, over the who was provided: then statute which power Supreme it had no held that Dakota The Court of South grant sentences, notwithstanding purporting to such statutes de- authority, executive saying of the the exclusive that such was opinion, do hence we

partment. not set forth The statutes were granted. authority Cir- purportedly Friske v. not know the extent etc., 214 W. 812. cuit Court N. enforceable, held void the sentence valid but Sup. Ct., al., expired South Abbott et in State v. after term had even its Spencer v. (1911), result was reached 6. The same S. E. Carolina (1911), State, Sup. Tenn. 140 S. W. 597. ofCt. imposed, imprisonment judgment is when a held that The Court proper incar- committed to the officers should forthwith this defendant ceration done, ; an order and the court makes where is juris- custody, discharged no it has from which the defendant the sentence and after diction, lapse of the time involved after the Clendenning judgment. Parte Ex term, such issue a commitment P. 650. Ct. of Okla. S. know of no Supreme in 1911 said “We of Idaho authority judgments in said cases. ones entered as the for such in our statutes sentencing prisoner authority, to a no after district court bond, release, mak- or without imprisonment, to direct term ing judge and thereafter subject recall release imprisonment.” suspended term of out the require serve defendant although holding case, granted in this the court Corpus was Habeas improper, to then commit had no the court Peterson, 113 P. 729. Ex Parte the defendant. *5 490 plead guilty, plea “If be entered on the accused such shall sentenced, placed minutes, be

the and he shall be or he ** custody the *.” (§1767 in the of sheriff until sentence. 1881). Hess, Sheriff, Smith v. 91 Ind. 424. Rev. Stat. years later, held that A under the same we few guilty, plea could do noth- the defendant’s of ing except him or to further either to at that time sentence sentence; place custody in until such him the of sheriff agreement sentence, and that if an for of condition that he not commit another similar had made, fact been or without consent of the or during good behavior, void; it was nevertheless and there was letting depart him no for from the court without sentenced, case, sentence. In this the defendant had not been arrangement alleged by but the to a defendant amounted suspension, enforcing de facto held void we while Gray (1886), sentence. v. State 107 Ind. 8 16. N. E. Viewing they developed, first statutes as we find that the By adopted (ch. 236). series of amendments and 1907 enactments, additional it has evolved Burns Ind. Stat. into Ann., Repl., Act 2210 and 2211. The 1907 §§9-2209, gave suspend sentences, provided the court the during suspension provided control revocation. further beginning, “good concept suspension pending From the of felonies, behavior” both for misdemeanors and for most “* * * obvious, provided suspen- and it was but such of order judgment parole only of such shall sion be effective and * * good operate during behavior of It has repeatedly been held means conduct con- forming law, abstaining i.e. from criminal acts.2 Addition- Weber, Appeals Ohio, 1945, 2. In re Court of of 61 N. 2d held E. accepted good phrase probationary an to be in connection with behavior conforming law, citing and mean conduct Am. Jur. Appeals regarded right suspend of of New York The Court sen- inherently judicial grounded prerogative amply tences as common law. however, ruling case, was that a statute au- during good thorizing the coui’t to sentences behavior awas legislative power People of under the constitution exercise ex rel. valid County, Forsyth Monroe Sessions 36 N. E. 386. of provided: “1. adopted by in 1931 A the State of Texas similar statute suspended, judgment sentence of shall be that When judgment the defendant. 2. during behavior conviction shall be By “good defendant shall meant that the behavior” is any any grade felony, character or offense not of convicted of be conversion, bailee, swindling, theft, embezzlement, theft acquisition personal property.” Art. Vernon’s Ann. C.C.P. fraudulent Leg., (This repealed 59th Vol. Acts of act has since been 777. 2, p. 317, current act but no 42.12, 722; 42.13. The Arts. Ann. C.C.P. ch. Vernon’s “* * * include, provides must the terms of (1) probationer: to, requirements commit that a are not limited against United other state or of the offense the laws of this or * *”* States. authorizing suspension dur- defendant’s sentence section Code ing “good behavior”, meaning con- that offender shall defined as *6 sentence, “any during refer does not other crime” the victed of only Louisiana, against all convic- but includes a crime the laws tions, using under the state law. federal, in a conviction federal court local such as whether or notwithstanding lottery, it was not an offense a mails to conduct 794, 796, Gordon, 214 La. 822. 38 2d State v. So. suspended “good judgment on condition in a criminal case has been Where behavior, payment goods means and the term behavior” of conduct that of costs by law, conduct behavior” means authorized and “bad 593, 594, Hardin, punish. 112 E. 183 S. as the law will State v. such C. 815. N. by law. United States v. is conduct authorized “Good behavior” Rep. 288, Hrasky, 1031, 1033, 560, 16 240 130 Am. St. E. Ill. 88 N. 921, Spencer, 22 922. In re Fed. Cas. Ann. Cas. 279. behavior”, prison judgment suspending and remain on con- sentence “Good within continuously behavior, good dition that defendant be 850, Pelley, conforming 20 2d to law. State v. S. E. means conduct 858, 221 N. C. 487. suspending defendant used in order sentence while “Good behavior” as conformity behavior, good criminal means obedience to is of laws Millner, law-abiding state; 83 citizen. State v. the demeanor of 546, 547, 240 C. E. 2d N. 602. S. implication good carries within behavior bond Term (Rev. 62-1504, principal’s comply with law St. that 62-1506). conduct must Sanders, 725, 726, 450. P. 132 Kan. v. 295 State upon suspending behavior,” sentence a de- as used an order “Good merely behavior, during good conduct law. means conformable to fendant Ex 1918D, Hamm, 190, 191, parte 24 M. 694. P. N. L.R.A. “good behavior”, suspended during means that which A sentence is any etc., felony, regardless of whether not be convicted of defendant shall of- committed before or after on an offense conviction is based such State, App., Cooper suspended. v. Tex. Cr. which sentence was fense for under Vernon’s Ann. C.C.P. case was decided 2d 819. This 230 S. W. supra. Art. upon Every granting probation must be conditioned “Good be- order conforming Chesnut, the law. State v. havior”, conduct means which 36, 38, 11 Utah 2d 2d 356 P. probation granting Every must be conditioned on “Good behav- order Oliver, conforming to ior”, means conduct Me., law. State 122, 124. 2d A. “* * * * per- provided of which ally, In case it was the offense is a misdemeanor son shall have been convicted as aforesaid officer, such only, counties there is or in where no suspend judgment parole court shall upon persons aforesaid, and conditions as to such terms suspended, by Where the sentence dur- had been ing good behavior, cause law, Supreme hearing upon and a was later an order to had show why suspension gaming of a not be violation should revoked for petition corpus, was revoked. But on for habeas because, although gaming discharged petitioner participated in which he had as it was a violation statute existed of the at suspension, the time of the the statute amended had been gaming engaged was not an he it. The offense at the time court said: “* * * ‘during good this case court In proper this turns The determination of behavior.’ used connection and the circum- of these words as definition stances they suggested used. It under which were Attor- ney upon argument that, might as the court General advisable, might he he deter- terms which deemed good what he considered behavior with- himself time mine for at proposition meaning effect of such a in would the terms used. arbitrary resting, court an within the breast of the be to leave determine himself what he considered behavior applied judge to each individual defendant. or misbehavior might require case and less in another. Good more in one behavior very high conduct, might mean standard of district in one while a measure to lower standard would be another a much any judicial arbitrary power applied. inhere in does not Such legal good behavior, appli- be a behavior must other officer. Good dealing instances, people in all as otherwise with courts cable alike mercy whim, caprice, peculiar of the ever be at will views particular judge, presiding court. over the *7 make and our to terms conditions and, sentence, suspension if to of a it desired retain in the is the breast of time to at whether determine- the court the enforced, suspension specify. of shall so be the order shall The self aries [*] [*] [*] holding, conformably are [*] sjs quoted effect, to that to law, and various definitions from law diction- is effect. that behavior means conducting one- only good behavior, of definition when the safe same We deem language, accompanying to be or modified con- not restricted is Hamm, supra. conformity law.” Ex Parte to ducted by 3, Appeals rigid view taken the Court of Ken- has been of A more Ky. 2557b, 1916, 53, tucky. relating St. subsec. amended Acts c. § Under required conviction violation of on a for a the local to bonds poker playing law, a conviction option March for a Act is not behavior”; meaning “good term to refrain a bond that breach of from option only. the local law Baker v. Common- future violations Ky. wealth, 399, 401, 181 205 W. S. judgment parole may and discretion court in its such as such provide.” judgment right proper, fix and its deem and and conditions, other specific i.e. conditions should be noted that It respect to only “good with than behavior” authorized were having respect counties misdemeanors and with to felonies in provided probation suspension was no officer. Revocation of for, court. discretion of the without notice and in the absolute merely re-

The a appears added amendment quirement employment and the release of felons reporting upon termi- and formal revocation of period; au- nation amendment minimum and the 1919 having appoint separate criminal court thorized counties a keeping. probation provided record a clerk and for salaries and relating a suspension parole received and statutes general 3). con- Our (Ch. in 1927 and overhaul §§ “good following: concept is cern right specific ex- was retained. The to attach conditions authority suspensions. to revoke court tended to all hearing, conditions and the was conditioned authorizing prescribed as revocation follows: were appear “If it shall that defendant has violated probation committed terms of his or has another probation of sen- revoke the might impose any originally sentence which

tence and have been imposed.” right Thus, noted, court’s it be to revoke will restricted. (Ch. 50, change, except 1) made no as to 1945 Act paid

compensation clerks. foregoing, appears From clear both to sentences thereafter to revoke statutory, suspensions, is of the exist- such in view ing law, it is clear that also behavior” means abstaining acts, conduct, from criminal i.e. lawful suspension, every that the condition conduct *8 condi- may, thereto, impose reasonable in addition other court specific conditions, however, must be additional tions.3 Such Otherwise, suspension. there specified in the order of and determining subsequently whether would no means of be they violated, to revoke would had and the not been by changed Act, arbitrary, under the 1907 but as was juncture, clear that since 1927. At it seems Act of this suspensions, all law to behavior” attaches as matter of “during good order of to the the words addition of by declaratory imposed merely of the conditions declaration conditions over law and in no sense a context, of sus- power. event has In this and court alleged violation, a hear- the court must have pension and an ing the terms of defendant has violated to determine if a committing by (1) another offense suspension, either and/or spec- violating by (2) conditions one or more of the additional former, by reference imposed the court. With to ified and arguable question to whether an as could then have we suspen- legislative to revoke to authorize the court intent was merely committed defendant had found that sion if it although for- not have been such offense another or a charged a conviction mally determined, or whether and However, precedent. we plea a condition would be that determination from the been relieved burden (Acts Ch. recent amendment the most § 9-2211). Supp. This amendment Ind. Ann. 1971 Burns Stat. “If it shall changed this section from the last sentence * * * another has committed appear that the defendant of- forth note 1 was reached those set different from 3. A result where court said: Supreme of North Carolina exists, judgments be exercised but should “The deprive fairly reasonably, defendant of and so as proceedings below, assign right if review the court and errors rights. so, regard his other He due to do he desires suspension. unduly oppressed There burdened not be must the court abuse its case nor did this no abuse of discretion consent of the de- authority. made with the complain, benefit, no reason to fendant, he now for his voluntary promise demean himself a having good his own violated v. Everett 79 S. E. do.” State should citizen

49.5 * * apear *,” “If feme, it shall revoke *9 * * * having com- guilty been the has defendant of found (Emphasis may revoke.” mitted another the court finding pre- guilty tense, ours). past of reference, to a general of the If for breach cludes debate. the revocation is a determi- behavior, have been of there must condition guilt date suspension the the date nation of between of hearing. of revocation the requirement a revo- pass upon attendant

We do not the law- specific cation conditions for violation of fully imposed by but, court, of this circumstances the case, the writ should issue. opinion; J.,

Hunter, J., concurs, DeBruler, concurs with J., Givan, Arterburn, J., opinion which C. dissents with concurs. Opinion

Concurring fully majority opinion and J. I concur DeBruler, suspended add these remarks. The revocation of governed 9-2211, 1971, 35-7-2-2, reads: Burns I.C. probation period, di- “At the close or of the whenever so, by court, re- probation rected officer shall to do the the port probationer a statement the the conduct probation. may while on The court thereafter discharge probationer may probation, or extend from probation period, any as shall seem advisable. At time probation may period, probation within the officer arrest only sentencing probationer upon warrant issued Thereupon, probationer shall forthwith be taken court. hearing, may rep- probationer the court for where before any At of his choice. within the resented counsel time might originally period for which defendant maximum committed, years, but in no to exceed been five a warrant and cause the issue defendant to be court arrested brought appear the court. shall before If probation has violated terms that or has defendant (mother having guilty been committed found of- probation

fense, revoke may impose might orig- sentence which imposed.” (Emphasis added.) inally have been grounds only for the last sentence states there are two revocation, (1) of a sentence: If the or, (2.) probation, if has been violated terms of his he having guilty of committed another offense. found allege undisputed prosecutor prove It is that the did not appellant There- had been found of another offense. original appellant’s fore if sentence was to be ordered served grounds appellant it had be on the had violated the probation. terms of his

However, petitioner placed probation and was was never on intelligible subject proba- never terms or conditions of being is not same as The status tion. being This is from free under a sentence. clear Davis State 256 Ind. 267 N. E. 2d where *10 February 11, petitioner on and sen- was convicted years prison. placed to ten in Petitioner on tenced one only years. suspended probation for two Petitioner’s occurring probationary for an act his term was revoked after years up but within five of his conviction. This was conclusively proves 9-2211 and that a con- accordance with § serving may suspended person a sentence and not be victed be probation. on person probation place a on it is of course

To convicted necessary sentence; however, suspend his that alone does probation. place person create status of To not probation trial out court must set some terms status comply with, person must which are or conditions the intended supervisory person. control form of over the to insure some during “good place a sentence does not Suspending meaning probation 9-2211 be- within the person on § intelligible terms or conditions which are cause there guide and no his behavior standards convict judge probationary should status the State free under a A convicted revoked. probation subject

but not on supervisory is not control and only his can be revoked if he has been found of another implies offense. The whole tenor 9-2211 this being being distinction between free sentence. Once grasped this distinction is then petitioner is obvious that probation, here was never on never subject probationary conditions, terms or therefore suspended sentence could not be revoked for a violation of probationary terms.

Dissenting Opinion regret Arterburn, C. J. I that I am unable to follow the reasoning of the majority opinion in this case. “Good behav- very ior” has a meaning my opinion. definite In this case the sentence was “good revoked because of a violation be- hearing havior” and a hearing was held and the showed that shotgun defendant had drawn a per- and threatened a son. very To this plainly me “good bad behavior and not behavior.”

I do not think the term needs to be specific. more made If one always were to do so would there be omissions and tech- nical difficulties. If behavior” meant a conviction of crime the statute could well have said so.

I am Judges reminded long the fact that they serve so “behave well.” I very feel meaning that has a definite also. very

I think explanation do not it takes much for the *11 average person to know what behavior” means. I be- majority opinion unnecessarily lieve the hamstrings the trial judge and creates needless refinements and technicalities. We already procedure. have too much of this criminal

Givan, J., concurs. Reported in 283 N. E. 2d 349. Note. —