Opinion
No. 1171S318.
Filed May 8, 1973.
APPEAL — Criminal Law — Supreme Court Rules — Motions. — Where a new sentence was substituted for the original sentence and the old sentence was entirely vacated, the time period within which a motion to correct errors may be filed began to run from the date of the last sentence rendered by the court and such sentence constituted a final judgment.
From the Marion Criminal Court, Division One, John T. Davis, Judge.
Appellant pleaded guilty to a violation of the Firearms Act and was given a suspended sentence. The trial court later determined that appellant had violated the terms of his probation. The court then revoked the suspension of sentence, vacated said sentence, and entered a new sentence from which appellant appealed. The State filed a motion to dismiss the appeal.
Motion to dismiss overruled.
Nola Allen, Indianapolis, for appellant.
Theodore L. Sendak, Attorney General, Mark Peden, Deputy Attorney General, for appellee.
ON MOTION TO DISMISS
The state has filed a motion to dismiss this appeal in which the defendant pleaded guilty to a violation of the Firearms Act — carrying a pistol without a license. After a pre-sentence investigation, the court sentenced the defendant to the Indiana State Farm for one (1) year and fined him $2000.00. The sentence was suspended. During the probationary period the defendant was convicted of uttering a fraudulent instrument. Thereupon, the defendant was ordered into court on the original charge for which he had been given a suspended sentence and the court found that he had violated the terms of his probation, and revoked the suspension of sentence. The court also vacated the sentence of one (1) year on the State Farm and the fine, and thereupon sentenced the defendant to imprisonment at the Indiana State Reformatory for a period of ten (10) years.
The state has filed a motion to dismiss the appeal of the latter sentence on the ground that the time within which an appeal may be taken has expired, calculating the time from the date the defendant was originally sentenced, citing Sutton v. State (1963), 244 Ind. 368, 191 N.E.2d 104.
With this contention we do not agree. Sutton v. State, supra, is not applicable for the reason that there the original sentence was not altered, but only the suspension was revoked. In this case a new sentence was substituted for the original sentence and the old sentence was entirely vacated. In our opinion Davis v. State (1971), 256 Ind. 58, 267 N.E.2d 63 is applicable. It involves the rendering of an entirely new sentence and not merely the revocation of the suspension of an old sentence.
The time begins to run in this case from the date of the last sentence rendered by the court, June 9, 1971, and therefore the motion to correct errors was timely filed.
Criminal Rule 16 provides that the defendant shall have sixty (60) days "from the date of sentencing to file a motion to correct errors." As to the contention that this case is not an appeal from a final judgment, the case of Davis v. State, supra, is decisive.
The motion to dismiss is overruled and the state is granted thirty (30) days from this date to file an answer brief. ALL JUSTICES CONCUR.
NOTE. — Reported in 295 N.E.2d 612.