Lawyers, I need help deciphering a law...

[Rookie]

IC 35-38-1-1.5 - converting class D felony to class A misdemeanor.

The way I read it, the prosecutor has to agree or it can't be done. Am I correct or can a judge override the prosecutor?

I ran into a situation where a defendant wanted to convert his class D felony and the judge cited IC 35-38-1-17(b) as the reason that he couldn't. He also cited Manley vs state as case law. I don't think this is accurate as the reason he couldn't do so, but I don't know for sure.

Please help. Can a felony be converted without prosecutor's consent? Any case law dealing specifically with this?

I will be happy to answer general questions if they are needed. Please PM if you need specifics...

 

[Kirk Freeman]

It depends.

Was this a modification hearing or a sentencing hearing?

If sentencing, was there a plea agreement? If so what were the terms of the plea agreement?

If modification, was the hearing within the 365 days allowed by the statute?

 

[Rookie]

Modification. Original sentence was 2008 and was completed 2009.

There was no plea agreement in the original sentencing.

 

[Kirk Freeman]

Original sentencing date was 2008? He had until 2009. Seems he waited too long if this just transpired.

If so he is beyond the 365 day deadline and may only modify if the Prosecuting Attorney does not veto his modification attempt.

IC 35-38-1-17

Reduction or suspension of sentence

Sec. 17. (a) Within three hundred sixty-five (365) days after:
(1) a convicted person begins serving the person's sentence;
(2) a hearing is held:
(A) at which the convicted person is present; and
(B) of which the prosecuting attorney has been notified; and
(3) the court obtains a report from the department of correction concerning the convicted person's conduct while imprisoned;
the court may reduce or suspend the sentence. The court must incorporate its reasons in the record.
(b) If more than three hundred sixty-five (365) days have elapsed since the convicted person began serving the sentence and after a hearing at which the convicted person is present, the court may reduce or suspend the sentence, subject to the approval of the prosecuting attorney. However, if in a sentencing hearing for a convicted person conducted after June 30, 2001, the court could have placed the convicted person in a community corrections program as an alternative to commitment to the department of correction, the court may modify the convicted person's sentence under this section without the approval of the prosecuting attorney to place the convicted person in a community corrections program under IC 35-38-2.6

 

[Rookie]

You have no idea how happy that makes me to hear that. Thank you.

 

[dross]

Care to share why you're happy about that? What did the guy do?

 

[Kirk Freeman]

Rookie, there is a common misperception about Indiana's modification statute. The word at the county jails and IDoC is that people have to wait 365 days before modifying, but the 365 days is actually a deadline.

 

[Ashkelon]

Kirk's got it. I see this problem arise over and over and over. The only way to handle a situation like this is to build your presentation package to the prosecutor and get them to consent to a hearing.

Unfortunately, most people just submit a handwritten letter to the Court don't give the prosecutor any advance notice or information and the Court is left with its hands tied.

Then when this happens prosecutor takes position that if it didn't mean enough to the defendant to seek out how to do it properly then it doesn't mean enough to them to consent to the modification.