The Indiana Lawyer on 7/29/16 by Marilyn Odendahl
Even though he violated the terms of his probation, an offender should not have been ordered back to jail because at his release Indiana Department of Correction made a mistake and put him on parole.
Anthony May was originally sentence to eight years with four years suspended to probation after being convicted of Class C felony nonsupport of a dependent child. His probation was first revoked in 2014 when he failed to pay child support and submit to monthly drug tests.
However, when he was released in February 2015, he was told to report on a weekly basis to his parole officer in Allen County. He met the terms of his parole but the trial court sent him back to jail again because he did not submit to monthly drug tests as required by the conditions of his probation.
May appealed, arguing the Huntington Superior Court abused its discretion in finding that he violated his probation.
In Anthony A. May v. State of Indiana, 35A04-1603-CR-673, the Indiana Court of Appeals agreed. The unanimous panel reversed the revocation and remanded with instructions to return May to probation.
The appellate court emphasized that individuals are either on parole or probation and cannot be placed on both at the same time. When May was released 2015, he was placed on parole so it was reasonable for May not to report to probation.
“Even in the face of a probation violation, the trial court may nonetheless exercise its discretion in deciding whether to revoke probation,” Chief Judge Nancy Vaidik wrote. “For example, lack of volition is a factor for the trial court to consider when deciding whether to revoke probation.”