Cooper v. State, 49S02-0904-CR-135
12-09-09, Ind.
Attorney: Ann M. Sutton; Bryan Lee Ciyou
Holding: A defendant must file either a notice of appeal or a motion to correct error no later than thirty days after a final appealable order is issued. Ind. Appellate Rule 9(A)(1). However, an appellate court has inherent authority to review an untimely appeal where the appeal qualifies as a rare and exceptional case of great public importance. See Lugar v. State ex rel. Lee, 270 Ind. 45, 383 N.E.2d 287 (1978). Here, trial court deprived Defendant of due process when it revoked his probation based solely on probable cause affidavit, without conducting an evidentiary hearing. Defendant did not file a motion to correct error or a notice of appeal but filed a motion to reconsider the probation revocation after the State dismissed new charges underlying the revocation. Although Defendant timely appealed the denial of his motion to reconsider, he used the appeal to argue that the initial revocation was improper because he was denied the right to due process.
Court held that Defendant’s failure to timely appeal the probation revocation was fatal to his appeal. Revoking probation without providing even the most rudimentary due process rights is not a rare and exceptional case of great public interest under Lugar to allow appellate review despite Defendant’s untimely appeal. Thus, only trial court’s denial of Defendant’s motion to reconsider was reviewable on appeal.
Dismissal of charges underlying the revocation was inconsequential. A trial court may still revoke probation even when a defendant has been acquitted of the charges providing the basis for the revocation. Brown v. State, 458 N.E.2d 245 (Ind. Ct. App. 1983). Because arrest was reasonable and there was probable cause that Defendant committed the offenses, evidence was sufficient to support trial court’s denial of Cooper’s motion to reconsider. Brooks v. State, 692 N.E.2d 951 (Ind. Ct. App. 1998). Held, transfer granted, Court of Appeals’ opinion at 894 N.E.2d 993 vacated, judgment affirmed. Boehm, J., dissenting, would entertain merits of appeal pursuant to Indiana Post-Conviction Rule 2.
