Indiana Criminal Law Code
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IC 35-34
ARTICLE 34. BRINGING CRIMINAL CHARGES
IC 35-34-1
Chapter 1. Indictment and Information
IC 35-34-1-1
Commencement of prosecution; filing; sealing; violation
35-34-1-1 Sec. 1. (a) All prosecutions of crimes shall be brought in
the name of the state of Indiana. Any crime may be charged by
indictment or information.
(b) Except as provided in IC 12-15-23-6(d), all prosecutions of
crimes shall be instituted by the filing of an information or
indictment by the prosecuting attorney, in a court with jurisdiction
over the crime charged.
(c) Whenever an indictment or information is filed, the clerk of the
court shall:
(1) mark the date of filing on the instrument;
(2) record it in a record book; and
(3) upon request, make a copy of it available to the defendant or
his attorney.
(d) The court, upon motion of the prosecuting attorney, may order
that the indictment or information be sealed. If a court has sealed
an indictment or information, no person may disclose the fact that
an indictment or information is in existence or pending until the
defendant has been arrested or otherwise brought within the custody
of the court. However, any person may make any disclosure
necessarily incident to the arrest of the defendant. A violation of
this subsection is punishable as a contempt.
As added by Acts 1981, P.L.298, SEC.3. Amended by Acts 1982,
P.L.204, SEC.18; P.L.10-1994, SEC.7.
IC 35-34-1-2
Contents; requisites; form
35-34-1-2 Sec. 2. (a) The indictment or information shall be in
writing and allege the commission of an offense by:
(1) stating the title of the action and the name of the court in
which the indictment or information is filed;
(2) stating the name of the offense in the words of the statute or
any other words conveying the same meaning;
(3) citing the statutory provision alleged to have been violated,
except that any failure to include such a citation or any error in
such a citation does not constitute grounds for reversal of a
conviction where the defendant was not otherwise misled as to the
nature of the charges against the defendant;
(4) setting forth the nature and elements of the offense charged in
plain and concise language without unnecessary repetition;
(5) stating the date of the offense with sufficient particularity to
show that the offense was committed within the period of
limitations applicable to that offense;
(6) stating the time of the offense as definitely as can be done if
time is of the essence of the offense;
(7) stating the place of the offense with sufficient particularity
to show that the offense was committed within the jurisdiction of
the court where the charge is to be filed;
(8) stating the place of the offense as definitely as can be done if
the place is of the essence of the offense; and
(9) stating the name of every defendant, if known, and if not known,
by designating the defendant by any name or description by which he
can be identified with reasonable certainty.
(b) An indictment shall be signed by:
(1) the foreman or five (5) members of the grand jury; and
(2) the prosecuting attorney or his deputy.
An information shall be signed by the prosecuting attorney or his
deputy and sworn to or affirmed by him or any other person.
(c) An indictment or information shall have stated upon it the names
of all the material witnesses. Other witnesses may afterwards be
subpoenaed by the state, but unless the name of a witness is stated
on the indictment or information, no continuance shall be granted to
the state due to the absence of the witness.
(d) The indictment or information shall be a plain, concise, and
definite written statement of the essential facts constituting the
offense charged. It need not contain a formal commencement, a formal
conclusion, or any other matter not necessary to the statement.
Presumptions of law and matters of which judicial notice is taken
need not be stated.
(e) The indictment may be substantially in the following form:
IN THE __________ COURT OF INDIANA, 20____
STATE OF INDIANA
vs. CAUSE NUMBER _______
A _________ B _________
The grand jury of the county of _________ upon their oath or
affirmation do present that AB, on the _________ day of __________
20____ at the county of _________ in the state of Indiana (HERE SET
FORTH THE OFFENSE CHARGED).
(f) The information may be substantially in the same form as the
indictment, substituting for the words, "the grand jury of the
county of _________, upon their oath or affirmation so present" the
following: "CD, being duly sworn on his oath or having affirmed,
says." It is not necessary in an information to state the reason why
the proceeding is by information rather than indictment.
(g) This section applies to a traffic offense (as defined in IC
9-30-3-5) if the traffic offense is:
(1) a felony; or
(2) a misdemeanor.
As added by Acts 1981, P.L.298, SEC.3. Amended by Acts 1982,
P.L.204, SEC.19; P.L.320-1983, SEC.11; P.L.158-1994, SEC.1;
P.L.2-2005, SEC.119.
IC 35-34-1-2.4
Verified or sworn documents; form of oath; administration; false
affirmation or verification
35-34-1-2.4 Sec. 2.4. (a) If an indictment, information, pleading,
motion, petition, probable cause affidavit, or other document is
required to be verified or sworn under oath before it is submitted
to the court in a criminal action, the document meets the
requirements of the law as a sworn document if the following form or
a substantially similar form is used:
I swear (affirm), under penalty of perjury as specified by IC
35-44-2-1, that the foregoing (the following) representations are
true.
Signed __________________
(b) If a document complies with subsection (a), the swearing or
affirming need not be done before a notary or other officer
empowered to administer oaths.
(c) A person who makes a false affirmation or verification under
this section may be prosecuted under IC 35-44-2-1.
As added by P.L.181-1988, SEC.1.
IC 35-34-1-2.5
Prior convictions
35-34-1-2.5 Sec. 2.5. If the penalty for an offense is, by the terms
of the statute, increased because the person was previously
convicted of the offense, the state may seek to have the person
sentenced to receive the increased penalty by alleging, on a page
separate from the rest of the charging instrument, that the person
was previously convicted of the offense.
As added by P.L.50-1984, SEC.7.
IC 35-34-1-3
Illegible or lost indictment or information
35-34-1-3 Sec. 3. When an indictment or information which has been
returned or presented to a court as authorized by law has become
illegible or cannot be produced, the defendant may be tried using a
copy certified by the clerk of the court.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-4
Motion to dismiss by defendant; grounds; requisites; disposition;
effect of order
35-34-1-4 Sec. 4. (a) The court may, upon motion of the defendant,
dismiss the indictment or information upon any of the following
grounds:
(1) The indictment or information, or any count thereof, is
defective under section 6 of this chapter.
(2) Misjoinder of offenses or parties defendant, or duplicity of
allegation in counts.
(3) The grand jury proceeding was defective.
(4) The indictment or information does not state the offense
with sufficient certainty.
(5) The facts stated do not constitute an offense.
(6) The defendant has immunity with respect to the offense charged.
(7) The prosecution is barred by reason of a previous prosecution.
(8) The prosecution is untimely brought.
(9) The defendant has been denied the right to a speedy trial.
(10) There exists some jurisdictional impediment to conviction of
the defendant for the offense charged.
(11) Any other ground that is a basis for dismissal as a matter of
law.
(b) Except as otherwise provided, a motion under this section shall
be made no later than:
(1) twenty (20) days if the defendant is charged with a felony; or
(2) ten (10) days if the defendant is charged only with one (1) or
more misdemeanors;
prior to the omnibus date. A motion made thereafter may be summarily
denied if based upon a ground specified in subdivision (a)(1),
(a)(2), (a)(3), (a)(4), or (a)(5) of this section. A motion to
dismiss based upon a ground specified in subdivision (a)(6), (a)(7),
(a)(8), (a)(9), (a)(10), or (a)(11) of this section may be made or
renewed at any time before or during trial. A motion to dismiss
based upon lack of jurisdiction over the subject matter may be made
at any time.
(c) Upon the motion to dismiss, a defendant who is in a position
adequately to raise more than one (1) ground in support thereof
shall raise every ground upon which he intends to challenge the
indictment or information. A subsequent motion based upon a ground
not properly raised may be summarily denied. However, the court, in
the interest of justice and for good cause shown, may entertain and
dispose of such a motion on the merits.
(d) Upon the motion to dismiss, the court shall:
(1) overrule the motion to dismiss;
(2) grant the motion to dismiss and discharge the defendant; or
(3) grant the motion to dismiss and deny discharge of the defendant
if the court determines that the indictment or information may be
cured by amendment under section 5 of this chapter and the
prosecuting attorney has moved for leave to amend.
If the court grants the motion under subdivision (3) and grants the
prosecuting attorney leave to amend, any prior order imposing
conditions of release pending trial shall stand unless otherwise
modified or removed by order of the court.
(e) If the court grants a motion under subsection (a)(3) and the
prosecuting attorney informs the court on the record that the
charges will be refiled within seventy-two (72) hours by
information:
(1) the court may not discharge the defendant; and
(2) any prior order concerning release pending trial remains in
force unless it is modified or removed by the court.
(f) An order of dismissal does not, of itself, constitute a bar to a
subsequent prosecution of the same crime or crimes except as
otherwise provided by law.
As added by Acts 1981, P.L.298, SEC.3. Amended by Acts 1982,
P.L.204, SEC.20; P.L.320-1983, SEC.12.
IC 35-34-1-5
Amendment of charge; procedures; limitations
35-34-1-5 Sec. 5. (a) An indictment or information which charges the
commission of an offense may not be dismissed but may be amended on
motion by the prosecuting attorney at any time because of any
immaterial defect, including:
(1) any miswriting, misspelling, or grammatical error;
(2) any misjoinder of parties defendant or offenses charged;
(3) the presence of any unnecessary repugnant allegation;
(4) the failure to negate any exception, excuse, or provision
contained in the statute defining the offense;
(5) the use of alternative or disjunctive allegations as to the
acts, means, intents, or results charged;
(6) any mistake in the name of the court or county in the title of
the action, or the statutory provision alleged to have been
violated;
(7) the failure to state the time or place at which the offense was
committed where the time or place is not of the essence of the
offense;
(8) the failure to state an amount of value or price of any matter
where that value or price is not of the essence of the offense; or
(9) any other defect which does not prejudice the substantial rights
of the defendant.
(b) The indictment or information may be amended in matters of
substance or form, and the names of material witnesses may be added,
by the prosecuting attorney, upon giving written notice to the
defendant, at any time up to:
(1) thirty (30) days if the defendant is charged with a felony; or
(2) fifteen (15) days if the defendant is charged only with one (1)
or more misdemeanors;
before the omnibus date. When the information or indictment is
amended, it shall be signed by the prosecuting attorney.
(c) Upon motion of the prosecuting attorney, the court may, at any
time before, during, or after the trial, permit an amendment to the
indictment or information in respect to any defect, imperfection, or
omission in form which does not prejudice the substantial rights of
the defendant.
(d) Before amendment of any indictment or information other than
amendment as provided in subsection (b) of this section, the court
shall give all parties adequate notice of the intended amendment and
an opportunity to be heard. Upon permitting such amendment, the
court shall, upon motion by the defendant, order any continuance of
the proceedings which may be necessary to accord the defendant
adequate opportunity to prepare his defense.
(e) An amendment of an indictment or information to include a
habitual offender charge under IC 35-50-2-8 must be made not later
than ten (10) days after the omnibus date. However, upon a showing
of good cause, the court may permit the filing of a habitual
offender charge at any time before the commencement of the trial.
As added by Acts 1981, P.L.298, SEC.3. Amended by Acts 1982,
P.L.204, SEC.21; P.L.320-1983, SEC.13; P.L.164-1993, SEC.7.
IC 35-34-1-6
Defective indictment or information; dismissal; exceptions
35-34-1-6 Sec. 6. (a) An indictment or information is defective
when:
(1) it does not substantially conform to the requirements of section
2(a) of this chapter;
(2) the allegations demonstrate that the court does not have
jurisdiction of the offense charged; or
(3) the statute defining the offense charged is unconstitutional or
otherwise invalid.
(b) An information is defective if:
(1) the defendant was a grand jury target identified under IC
35-34-2-12(a)(1);
(2) the offense alleged was identified on the record under IC
35-34-2-12(a)(2) as an offense that the defendant allegedly
committed; and
(3) the grand jury proceeded to deliberate on whether to issue an
indictment, and voted not to indict the defendant for the offense
identified on the record under IC 35-34-2-12(a)(2).
However, if the prosecuting attorney shows that there is newly
discovered material evidence that was not presented to the grand
jury before the grand jury's failure to indict, then the information
is not defective.
(c) Except as provided in section 5 of this chapter, an indictment
or information or a count thereof shall be dismissed upon motion
when it is defective.
As added by Acts 1981, P.L.298, SEC.3. Amended by P.L.312-1985,
SEC.1; P.L.3-1990, SEC.121.
IC 35-34-1-7
Grand jury proceedings; violation of IC 35-34-2; dismissal
35-34-1-7 Sec. 7. An indictment shall be dismissed upon motion when
the grand jury proceeding which resulted in the indictment was
conducted in violation of IC 35-34-2.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-8
Motion to dismiss by defendant; requisites; affidavits; documentary
evidence; hearing; disposition; procedures
35-34-1-8 Sec. 8. (a) A motion to dismiss an indictment or
information under section 4 of this chapter shall be in writing. The
prosecutor must be given reasonable notice of a motion to dismiss.
If the motion is expressly or impliedly based upon the existence or
occurrence of facts, the motion shall be accompanied by affidavits
containing sworn allegations of these facts. The sworn allegations
may be based upon personal knowledge of the affiant or upon
information and belief, provided that in the latter event the
affiant discloses the sources of the information and the grounds for
the belief. If the motion is expressly or impliedly based upon the
existence of any question of law, the motion shall be accompanied by
a memorandum stating specifically the legal question in issue. The
defendant may also submit documentary evidence tending to support
the allegations of the motion.
(b) The prosecutor may:
(1) file with the court an answer denying or admitting any or all of
the allegations of the motion; and
(2) submit documentary evidence tending to refute the allegations.
(c) After all papers of both parties have been filed, and after all
documentary evidence has been submitted, the court shall determine
whether, under subsections (d) and (e) of this section, a hearing is
necessary to resolve questions of fact.
(d) The court shall grant the motion without conducting a hearing
only if:
(1) the motion alleges a ground constituting a legal basis for the
motion under section 4 of this chapter;
(2) the ground, if expressly or impliedly based upon the existence
or occurrence of facts, is supported by sworn allegations of all
facts essential to support the motion; and
(3) the sworn allegations of fact essential to support the motion
are admitted as true by the prosecutor or are conclusively
established by documentary evidence.
(e) The court may deny the motion without conducting a hearing only
if:
(1) the motion does not allege a ground constituting a legal basis
for the motion under section 4 of this chapter;
(2) the motion is expressly or impliedly based upon the existence or
occurrence of facts, and the motion does not contain sworn
allegations supporting all the essential facts; or
(3) an allegation of fact essential to support the motion is
conclusively refuted by documentary evidence.
(f) If a hearing is necessary to resolve questions of fact, the
court shall conduct a hearing and make findings of fact essential to
the determination of the motion. The defendant has a right to be
present and represented by counsel at the hearing but may waive this
right. The defendant has the burden of proving by a preponderance of
the evidence every fact essential to support the motion.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-9
Joinder of offenses or defendants 35-34-1-9 Sec. 9. (a) Two (2) or
more offenses may be joined in the same indictment or information,
with each offense stated in a separate count, when the offenses:
(1) are of the same or similar character, even if not part of a
single scheme or plan; or
(2) are based on the same conduct or on a series of acts connected
together or constituting parts of a single scheme or plan.
(b) Two (2) or more defendants can be joined in the same indictment
or information when:
(1) each defendant is charged with each offense included;
(2) each of the defendants is charged as a conspirator or party to
the commission of the offense and some of the defendants are also
charged with one (1) or more offenses alleged to be in furtherance
of the conspiracy or common scheme or plan; however, a party to the
commission of an offense or conspirator need not be designated as
such in the indictment or information; or
(3) conspiracy is not charged and not all of the defendants are
charged in each count, if it is alleged in the indictment or
information that the offenses charged:
(A) were part of a common scheme or plan; or
(B) were so closely connected in respect to time, place, and
occasion that it would be difficult to separate proof of one (1)
charge from proof of the others.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-10
Motions; joinder of offenses; dismissal of offense joinable for
trial or of related offenses; requisites; orders
35-34-1-10 Sec. 10. (a) When a defendant has been charged with two
(2) or more offenses in two (2) or more indictments or informations
and the offenses could be joined in the same indictment or
information under section 9(a)(1) of this chapter, the court, upon
motion of the defendant, may order that the indictments or
informations be joined for trial. Such motion shall be made before
commencement of trial on either of the offenses charged.
(b) When a defendant has been charged with two (2) or more offenses
in two (2) or more indictments or informations and the offenses
could have been joined in the same indictment or information under
section (9)(a)(2) of this chapter, the court, upon motion of the
defendant or the prosecuting attorney, or on its own motion, shall
join for trial all of such indictments or informations unless the
court, in the interests of justice, orders that one (1) or more of
such offenses shall be tried separately. Such motion shall be made
before commencement of trial on either of the offenses charged.
(c) A defendant who has been tried for one (1) offense may
thereafter move to dismiss an indictment or information for an
offense which could have been joined for trial with the prior
offenses
under section 9 of this chapter. The motion to dismiss shall be made
prior to the second trial, and shall be granted if the prosecution
is barred by reason of the former prosecution.
(d) A defendant who has been sentenced on a plea of guilty to one
(1) offense may move to dismiss an indictment or information for a
related offense. The motion shall be granted if the plea of guilty
was entered on the basis of a plea agreement in which the prosecutor
agreed to seek or not to oppose dismissal of other related offenses
or not to prosecute other potential related offenses.
(e) Subject to the provisions of section 11(a) of this chapter, two
(2) or more offenses which are within the jurisdiction of the same
court and which could have been joined in one (1) prosecution
constitute related offenses.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-11
Severance of offenses or separate trial of defendants joined
35-34-1-11 Sec. 11. (a) Whenever two (2) or more offenses have been
joined for trial in the same indictment or information solely on the
ground that they are of the same or similar character, the defendant
shall have a right to a severance of the offenses. In all other
cases the court, upon motion of the defendant or the prosecutor,
shall grant a severance of offenses whenever the court determines
that severance is appropriate to promote a fair determination of the
defendant's guilt or innocence of each offense considering:
(1) the number of offenses charged;
(2) the complexity of the evidence to be offered; and
(3) whether the trier of fact will be able to distinguish the
evidence and apply the law intelligently as to each offense.
(b) Whenever two (2) or more defendants have been joined for trial
in the same indictment or information and one (1) or more defendants
move for a separate trial because another defendant has made an
out-of-court statement which makes reference to the moving defendant
but is not admissible as evidence against him, the court shall
require the prosecutor to elect:
(1) a joint trial at which the statement is not admitted into
evidence;
(2) a joint trial at which the statement is admitted into evidence
only after all references to the moving defendant have been
effectively deleted; or
(3) a separate trial for the moving defendant.
In all other cases, upon motion of the defendant or the prosecutor,
the court shall order a separate trial of defendants whenever the
court determines that a separate trial is necessary to protect a
defendant's right to a speedy trial or is appropriate to promote a
fair determination of the guilt or innocence of a defendant.
(c) The court may order the prosecutor to disclose in camera any
information concerning statements made by the defendants which the
prosecutor intends to introduce in evidence at the trial if this
information would assist the court in ruling on a motion for a
separate trial.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-12
Motion for severance or separate trial; time; waiver or bar
35-34-1-12 Sec. 12. (a) A defendant's motion for severance of crimes
or motion for a separate trial must be made before commencement of
trial, except that the motion may be made before or at the close of
all the evidence during trial if based upon a ground not previously
known. The right to severance of offenses or separate trial is
waived by failure to make the motion at the appropriate time.
(b) If a defendant's pretrial motion for severance of offenses or
motion for a separate trial is overruled, the motion may be renewed
on the same grounds before or at the close of all the evidence
during trial. The right to severance of offenses or separate trial
is waived by failure to renew the motion.
(c) If a defendant's motion for severance of offenses or separate
trial is granted during the trial, the granting of the motion shall
not bar a subsequent trial of that defendant on the offenses
charged.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-13
Motion to dismiss by prosecuting attorney
35-34-1-13 Sec. 13. (a) Upon motion of the prosecuting attorney, the
court shall order the dismissal of the indictment or information.
The motion may be made at any time before sentencing and may be made
on the record or in writing. The motion shall state the reason for
dismissal.
(b) In any case where an order sustaining a motion to dismiss would
otherwise constitute a bar to further prosecution of the crime
charged, unless the defendant objects to dismissal, the granting of
the motion does not bar a subsequent trial of the defendant on the
offense charged.
As added by Acts 1981, P.L.298, SEC.3. Amended by Acts 1982,
P.L.204, SEC.22.
IC 35-34-1-14
Pleading special matters; sufficiency
35-34-1-14 Sec. 14. In any indictment or information, an averment
substantially in compliance with the provisions of this section
shall be sufficient.
(a) The age of the defendant or the victim need not be alleged,
except where the age of the defendant or the victim is an essential
element of the offense charged.
(b) Averments as to any money or bills or notes or postal orders
issued by any lawful authority and intended to pass and circulate as
money are sufficient to be alleged simply as money without further
identification.
(c) It is sufficient to describe a written instrument by any name or
designation by which it is usually known or to aver generally the
contents of such instrument.
(d) Averments of dates and numbers may be by words or figures or
both.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-15
Incorrect name of defendant immaterial
35-34-1-15 Sec. 15. (a) If the stated name of the defendant in the
indictment or information is incorrect:
(1) this defect shall not be a ground for dismissal of the
indictment or information; and
(2) any variance between the allegations and the proof of the
defendant's name shall not be considered material.
(b) If at any time during the proceedings the true name of the
defendant becomes known, the court shall order the indictment or
information amended to show both the name by which the defendant was
first charged and the name later alleged to be true.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-16
Perjury; requisites
35-34-1-16 Sec. 16. (a) In an indictment or information for perjury,
it is necessary to set forth only:
(1) the substance of the controversy or the matter in respect to
which the alleged offense was committed; and
(2) in what court or before whom the false statement was made.
It is not necessary to set forth any part of any record or
proceeding, or the commission or authority of the court or person
before whom the perjury was allegedly committed.
(b) In an indictment or information for perjury, in swearing to any
written instrument, it is necessary to set forth only that part of
the instrument alleged to have been falsely sworn to, and to
negative the same, with the name of the officer or court before whom
the instrument was sworn.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-17
Forgery; misdescription of instrument destroyed or withheld by
defendant immaterial
35-34-1-17 Sec. 17. When an instrument which is the subject of an
indictment or information for forgery has been destroyed, or is
withheld by the act or procurement of the defendant, and the fact of
the destruction or withholding is alleged in the indictment or
information, and established at trial, the misdescription of the
instrument is immaterial.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-18
Names of owners of property
35-34-1-18 Sec. 18. The indictment or information for an offense
which was committed upon or in relation to any property belonging to
partners, or to several joint owners, or property which, when the
offense was committed, was in possession of a bailee or tenant, is
sufficient if it alleges the ownership of the property to be in the
name of:
(1) the partnership or any partner;
(2) an owner;
(3) a bailor;
(4) a bailee; or
(5) a tenant.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-1-19
Rules of construction
35-34-1-19 Sec. 19. The words used in an indictment or information
shall be construed using their ordinary and common meaning, except
words and phrases defined by law, which are to be construed
according to their legal meaning.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-2
Chapter 2. Grand Jury and Special Grand Jury
IC 35-34-2-1
"Target" defined
35-34-2-1 Sec. 1. As used in this chapter:
"Target" means a person who has been charged by information for an
offense the grand jury is investigating, or who is a subject of the
grand jury investigation.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-2-2
Number; impaneling; scope of function and authority; convening
35-34-2-2 Sec. 2. (a) A grand jury shall consist of six (6) grand
jurors and one (1) alternate and may be impaneled by the circuit
court or a superior court with criminal jurisdiction. A grand jury
shall hear and examine evidence concerning crimes and shall take
action with respect to this evidence as provided by law.
(b) The court shall call the grand jury into session at the request
of the prosecuting attorney. The court may also convene the grand
jury without a request from the prosecuting attorney. The grand jury
shall be convened by the judge issuing an order requiring the jury
to meet at a time specified.
(c) A grand jury may not remain in session for more than six (6)
months.
(d) An alternate impaneled under this section shall appear and hear
all evidence presented to the grand jury but may not comment,
deliberate, or vote unless there is not a quorum of grand jurors for
a particular session.
As added by Acts 1981, P.L.298, SEC.3. Amended by Acts 1982,
P.L.204, SEC.23; P.L.4-1998, SEC.12.
IC 35-34-2-3
Drawing, selecting, and impaneling; discharge of panel or juror;
grounds; foreman and clerk; minutes; record transcript; oath;
instructions; report of offense
35-34-2-3 Sec. 3. (a) The jurors on a grand jury and one (1)
alternate shall be drawn, selected, and impaneled by the procedure
set out in IC 33-28-4 or IC 33-28-6.
(b) Whenever the court finds that the original panel was not
selected in substantial conformity with the requirements of law for
the selection of the panel, the court shall discharge the panel and
summon another panel.
(c) Whenever the court finds that a grand juror:
(1) is disqualified from service under law;
(2) is incapable of performing the juror's duties because of bias or
prejudice;
(3) is guilty of misconduct in the performance of the juror's duties
that might impair the proper functioning of the grand jury; (4) is
under the age of eighteen (18) years;
(5) is not a resident of the county;
(6) is an alien;
(7) is a mentally incompetent person;
(8) is a witness for the prosecution;
(9) has such a state of mind in reference to a target that the juror
cannot act impartially and without prejudice to the substantial
rights of that person;
(10) holds a juror's place on the grand jury by reason of the
corruption of the officer who selected and impaneled the grand jury;
or
(11) has requested or otherwise caused any officer or an officer's
deputy to place the juror upon the grand jury;
the court shall refuse to swear that grand juror or, if the juror
has been sworn, shall discharge that grand juror and swear another
grand juror.
(d) After a grand jury has been impaneled, the court that called the
grand jury shall appoint one (1) of the grand jurors as foreman and
one (1) as clerk. During any absence of the foreman or clerk, the
grand jury shall select one (1) of their number to act as foreman or
clerk. The clerk shall keep minutes of the grand jury proceedings.
The court shall supply a means for recording the evidence presented
before the grand jury and all of the other proceedings that occur
before the grand jury, except for the deliberations and voting of
the grand jury and other discussions when the members of the grand
jury are the only persons present in the grand jury room. The
evidence and proceedings shall be recorded in the same manner as
evidence and proceedings are recorded in the court that impaneled
the grand jury. When ordered by the court, a transcript or a copy of
the recording shall be prepared and supplied to the requesting
party. If the transcript is supplied, it shall be at the cost of the
party requesting it. If a copy of the recording is supplied, the
party requesting it is responsible for the actual cost of
reproduction. If a transcript has already been prepared, the
requesting party is responsible for the actual cost of obtaining the
copy. If the court finds the requesting party is an indigent
defendant, the cost of the transcript or copy of the recording
supplied to the defendant shall be paid by the county.
(e) The following oath must be administered to the grand jury:
"You, and each of you, do solemnly swear or affirm that you will
diligently inquire and make true presentment of all offenses
committed or triable within this county, of which you have or can
obtain legal evidence; that you will present no person through
malice, hatred, ill will, nor leave any unpresented through fear,
favor, or affection, or for any reward, or the promise or hope
thereof, but in all your indictments you will present the truth, the
whole truth, and nothing but the truth; that you will not disclose
any evidence given or proceeding had before the grand jury; that you
will keep secret whatever you or any other grand juror may have said
or in what manner you or any other grand juror may have voted on a
matter before the
grand jury.".
(f) The court shall provide a printed copy of the provisions of this
chapter to the grand jury upon the request of any member of the
grand jury. In addition, the court shall give the grand jurors any
instructions relating to the proper performance of their duties that
the court considers necessary.
(g) If a member of the grand jury has reason to believe that an
offense has been committed which is triable in the county, the
member may report this information to fellow jurors, who may then
investigate the alleged offense.
As added by Acts 1981, P.L.298, SEC.3. Amended by Acts 1982,
P.L.204, SEC.24; P.L.320-1983, SEC.14; P.L.312-1985, SEC.3;
P.L.169-1988, SEC.6; P.L.33-1989, SEC.124; P.L.4-1998, SEC.13;
P.L.98-2004, SEC.144.
IC 35-34-2-4
Conduct of proceedings
35-34-2-4 Sec. 4. (a) The proceedings of a grand jury are not valid
unless at least five (5) of its members are present.
(b) The foreman shall administer an oath to any witness appearing
before the grand jury.
(c) The prosecuting attorney, his staff and any witness the
prosecuting attorney or the grand jury requests to be present may be
present at any time during grand jury proceedings, except as
provided in subsection (h).
(d) The grand jury may request assistance from a clerk, or other
public servant, authorized by the court to assist the grand jury in
the administrative conduct of its proceedings. Such a clerk or other
public servant may be present during any grand jury proceedings,
except as specified in subsection (h).
(e) The person recording the proceedings may be present during the
proceedings except as specified in subsection (h).
(f) The grand jury may request the court to provide an interpreter
to assist the grand jury in understanding the testimony of any
witness, and the court shall provide an interpreter when requested.
Before assuming his duties with the grand jury, an interpreter shall
take an oath before the grand jury that he will faithfully interpret
all testimony of the witness and that he will keep secret all
matters before the grand jury that are within his knowledge. He may
be present as requested by the grand jury, except as set out in
subsection (h).
(g) When a person held in official custody is a witness before the
grand jury, a public servant assigned to guard him may accompany him
in the grand jury room. However, before entering the grand jury room
for that purpose, the public servant shall take an oath before the
grand jury that he will keep secret all matters before the grand
jury that are within his knowledge.
(h) During the deliberations and voting of the grand jury, only the
grand jurors may be present in the grand jury room.
(i) Grand jury proceedings shall be secret, and no person present
during a grand jury proceeding may, except in the lawful discharge
of his duties or upon written order of the court impaneling the
grand jury or the court trying the case on indictment presented by
the grand jury, disclose:
(1) the nature or substance of any grand jury testimony; or
(2) any decision, result, or other matter attending the grand jury
proceeding.
However, any court may require any person present during a
proceeding to disclose the testimony of a witness as direct evidence
in a prosecution for perjury.
(j) The grand jury shall be the exclusive judge of the facts with
respect to any matter before it.
(k) The court and the prosecuting attorney shall be the legal
advisors of the grand jury, and the grand jury may not seek or
receive legal advice from any other source.
(l) The grand jury may not, without court permission, exercise any
of its functions in any place other than that designated by the
court.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-2-5
Subpoenas; contents; failure to obey; contempt
35-34-2-5 Sec. 5. (a) A subpoena duces tecum or subpoena ad
testificandum summoning a witness to appear before the grand jury
shall be issued by the clerk upon the request of the grand jury or
prosecuting attorney. The subpoena must contain a statement of the
general nature of the grand jury inquiry.
(b) If the subpoena is issued to a target, the subpoena shall also
contain a statement informing the target that:
(1) he is a subject of the grand jury investigation;
(2) he has the right to consult with an attorney and to be assisted
by an attorney under section 13 of this chapter; and
(3) if he cannot afford an attorney, the court inpaneling the grand
jury will appoint one for him, upon request.
(c) If a witness fails to appear at the time and place stated in the
subpoena, the court may hold him in contempt of court, unless he had
filed a motion to quash the subpoena and the motion has been granted
or was pending at the time he was to have appeared.
As added by Acts 1981, P.L.298, SEC.3. Amended by P.L.320-1983,
SEC.15; P.L.170-1984, SEC.2.
IC 35-34-2-5.5
Target witnesses; right to counsel; removal of attorney
35-34-2-5.5 Sec. 5.5. (a) A target subpoenaed under section 5 of
this chapter is entitled to the assistance of his attorney when the
person is questioned in the grand jury room, subject to this
section.
(b) The target's attorney:
(1) must take an oath of secrecy administered by the foreman;
(2) while in the grand jury room may not, without first obtaining
the consent of the prosecutor and the foreman:
(A) address the grand jury or the prosecuting attorney; (B) make
objections or arguments;
(C) question any person; or
(D) otherwise participate in the proceeding; and
(3) may advise the client so long as the conversation is not
overheard by any member of the grand jury.
(c) The court that impaneled the grand jury may remove any attorney
from the grand jury room and may find him to be in contempt of court
if the attorney has violated the requirements of subsection (b) or
has otherwise disrupted or unnecessarily delayed the grand jury
proceeding.
As added by P.L.170-1984, SEC.3.
IC 35-34-2-6
Motion to quash subpoena duces tecum; use immunity
35-34-2-6 Sec. 6. (a) Any witness may file a motion to quash a
subpoena duces tecum directed to that witness. The motion must
include a statement of the facts and grounds in support of the
objection to the subpoena. The court shall:
(1) promptly conduct a hearing on the motion; and
(2) at the conclusion of the hearing, enter findings in support of
its ruling.
(b) A target who is subpoenaed may move to quash a subpoena based
upon his privilege against self-incrimination. The court shall grant
the motion, unless the prosecuting attorney makes a written request
that the target be granted use immunity in accordance with section 8
of this chapter. Upon request by the prosecuting attorney, the court
shall grant use immunity to the target and order him to comply with
the subpoena.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-2-7
Witnesses; refusal to answer; compelling testimony
35-34-2-7 Sec. 7. (a) If a witness before the grand jury refuses to
answer any question or produce any item, the prosecutor may inform
the court, in writing, of the question asked or item sought and the
reason given for the refusal. The court shall, after a hearing,
decide whether the witness is required to answer the question or
produce the item and the witness shall be informed immediately of
the court's decision.
(b) If the court determines that the witness must answer the
question or produce the item and the witness continues to refuse, he
shall be brought before the court and the court shall proceed as if
the witness had refused in open court.
(c) If the court determines that the witness may properly refuse to
answer a question or produce an item based upon his privilege
against self-incrimination, the prosecutor may request the court to
grant use immunity to the witness under section 8 of this chapter.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-2-8 Witnesses; use immunity
35-34-2-8 Sec. 8. (a) Upon request by the prosecuting attorney, the
court shall grant use immunity to a witness before the grand jury.
The court shall instruct the witness by written order or in open
court that any evidence the witness gives before the grand jury, or
evidence derived from that evidence, may not be used in any criminal
prosecution against that witness, unless the evidence is volunteered
by the witness or is not responsive to a question by the grand jury
or the prosecutor. The court shall then instruct the witness that he
must answer the questions asked and produce the items requested.
(b) A grant of use immunity does not prohibit the use of evidence
the witness gives in a prosecution for perjury under IC 35-44-2-1.
(c) If a witness refuses to give evidence after he has been granted
use immunity, he shall be brought before the court and the court
shall proceed as if the witness had refused in open court.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-2-9
Right to testify before grand jury; target of investigation;
notification; waiver of immunity; calling of witnesses
35-34-2-9 Sec. 9. (a) Except as provided by subsection (b) of this
section, no person has a right to appear as a witness before the
grand jury or to present any evidence or information to the grand
jury.
(b) A target of a grand jury investigation shall be given the right
to testify before the grand jury, provided he signs a waiver of
immunity. The prosecuting attorney shall notify a target of his
opportunity to testify unless:
(1) notification may result in flight or endanger other persons or
obstruct justice; or
(2) the prosecutor is unable, with reasonable diligence, to notify
him.
(c) The prosecuting attorney or grand jury may call as a witness in
a grand jury proceeding any person believed to possess relevant
information or knowledge.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-2-10
Unauthorized disclosure of grand jury information; offense;
production of transcript
35-34-2-10 Sec. 10. (a) Except when required to do so by law, a
person who has been present at a grand jury proceeding and who
knowingly or intentionally discloses:
(1) any evidence or testimony given or produced;
(2) what a grand juror said; or
(3) the vote of any grand juror;
to any other person, except to a person who was also present or
entitled to be present at that proceeding or to the prosecuting
attorney or his representative, commits unauthorized disclosure of
grand jury information, a Class B misdemeanor.
(b) The transcript of testimony of a witness before a grand jury
may be produced only:
(1) for the official use of the prosecuting attorney; or
(2) upon order of:
(A) the court which impaneled the grand jury;
(B) the court trying a case upon an indictment of the grand jury; or
(C) a court trying a prosecution for perjury;
but only after a showing of particularized need for the transcript.
As added by Acts 1981, P.L.298, SEC.3. Amended by P.L.312-1985,
SEC.4.
IC 35-34-2-11
Access to local government facilities for care or custody of persons
35-34-2-11 Sec. 11. The grand jury shall have free access, at all
reasonable times, to any county, city, or town facility where
persons are held in care or custody of such county, city, or town,
for the purpose of examining their condition and management.
As added by Acts 1981, P.L.298, SEC.3.
IC 35-34-2-12
Identification of target and offense; validity of indictment;
concurrence of five grand jurors; signatures; endorsement
35-34-2-12 Sec. 12. (a) Before the grand jury proceeds to deliberate
on whether to issue an indictment, the prosecuting attorney shall,
on the record:
(1) identify each target of the grand jury proceeding; and
(2) identify each offense that each target is alleged to have
committed.
(b) Before an indictment is valid, at least five (5) grand jurors
must concur in the finding of the indictment, and it must be:
(1) signed by the prosecuting attorney or his deputy;
(2) endorsed with the phrase "a true bill"; and
(3) signed by the foreman of the grand jury or five (5) members of
the grand jury.
(c) An indictment is not valid unless the offense that the
indictment charges the defendant committed is an offense that is
contained on the record under subsection (a).
(d) An indictment is not valid if it indicts the target of a
previous grand jury who:
(1) was identified under subsection (a)(1);
(2) was the target of a previous grand jury that proceeded to
deliberate on whether to issue an indictment, and voted not to
indict the defendant for the offense identified to the previous
grand jury under subsection (a)(2); and
(3) was alleged to have committed an offense identified to a
previous grand jury under subsection (a)(2).
However, if the prosecuting attorney shows that there is newly
discovered material evidence that was not presented to the previous
grand jury before the grand jury's failure to indict, then the
indictment is not defective.
As added by Acts 1981, P.L.298, SEC.3. Amended by P.L.312-1985,
SEC.2.
IC 35-34-2-13
Extension of term; limitation
35-34-2-13 Sec. 13. The judge of any court having criminal
jurisdiction may, upon due cause shown by petition of the
prosecuting attorney of the judicial circuit, extend the terms of
the members of a grand jury then convened for an additional term of
three (3) months or more, as requested by the prosecuting attorney.
The terms of the members of any grand jury may be so extended for
successive periods of increments of three (3) months or more, to a
total length of no more than two (2) years.
As added by P.L.171-1984, SEC.75.
IC 35-34-2-14
Special grand jury; powers and duties; term
35-34-2-14 Sec. 14. (a) The judge of any court having criminal
jurisdiction may, upon due cause shown by petition of the
prosecuting attorney of the judicial circuit, order the clerk of the
courts, or jury commissioner (as defined in IC 33-28-6-4) to draw
the names of competent persons to be summoned to serve on a special
grand jury, which shall serve in addition to the grand jury
regularly summoned and convened pursuant to law.
(b) A special grand jury has the powers and duties of a grand jury
prescribed by law.
(c) The members of the special grand jury serve terms of three (3)
months or more, as requested by the prosecuting attorney. The terms
of members of a special grand jury shall be extended for the same
period of time and in the same manner in which the terms of grand
jury members may be extended under section 13 of this chapter.
As added by P.L.171-1984, SEC.76. Amended by P.L.98-2004, SEC.145.
IC 35-34-2-15
Special grand jury; number and names to be drawn; investigation of
panel; issuance of venires or summonses
35-34-2-15 Sec. 15. When names of grand jurors are ordered drawn to
be summoned under section 14 of this chapter, the judge shall
specify the number of names to be drawn, and shall enter an order in
sufficient time before the grand jury session to permit counsel to
know and investigate the panel of special grand jurors. The order of
names listed in the panel and called for service and entered in the
order book of the court shall be the same as that provided in IC
33-28-4-9 or IC 33-28-6, as may be applicable. The clerk shall issue
venires or summonses for such jurors as the courts may direct. The
sheriff or bailiff shall then call the special grand jurors to the
jury box in the same order as that in which their names
were drawn from the box and certified thereto.
As added by P.L.171-1984, SEC.77. Amended by P.L.98-2004, SEC.146.
IC 35-35
ARTICLE 35. PLEADING AND PROCEDURE
IC 35-35-1
Chapter 1. Pleas
IC 35-35-1-1
Guilty or guilty but mentally ill at time of crime; aid of counsel
35-35-1-1 Sec. 1. A plea of guilty, or guilty but mentally ill at
the time of the crime, shall not be accepted from a defendant
unrepresented by counsel who has not freely and knowingly waived his
right to counsel.
As added by Acts 1981, P.L.298, SEC.4.
IC 35-35-1-2
Guilty plea; advertisement of rights
35-35-1-2 Sec. 2. (a) The court shall not accept a plea of guilty or
guilty but mentally ill at the time of the crime without first
determining that the defendant:
(1) understands the nature of the charge against him;
(2) has been informed that by his plea he waives his rights to:
(A) a public and speedy trial by jury;
(B) confront and cross-examine the witnesses against him;
(C) have compulsory process for obtaining witnesses in his favor;
and
(D) require the state to prove his guilt beyond a reasonable doubt
at a trial at which the defendant may not be compelled to testify
against himself;
(3) has been informed of the maximum possible sentence and minimum
sentence for the crime charged and any possible increased sentence
by reason of the fact of a prior conviction or convictions, and any
possibility of the imposition of consecutive sentences;
(4) has been informed that the person will lose the right to possess
a firearm if the person is convicted of a crime of domestic violence
(IC 35-41-1-6.3); and
(5) has been informed that if:
(A) there is a plea agreement as defined by IC 35-35-3-1; and
(B) the court accepts the plea;
the court is bound by the terms of the plea agreement.
(b) A defendant in a misdemeanor case may waive the rights under
subsection (a) by signing a written waiver.
(c) Any variance from the requirements of this section that does not
violate a constitutional right of the defendant is not a basis for
setting aside a plea of guilty.
As added by Acts 1981, P.L.298, SEC.4. Amended by P.L.179-1984,
SEC.1; P.L.313-1985, SEC.1; P.L.195-2003, SEC.3.
IC 35-35-1-3
Voluntary plea; factual basis
35-35-1-3 Sec. 3. (a) The court shall not accept a plea of guilty or
guilty but mentally ill at the time of the crime without first
determining that the plea is voluntary. The court shall determine
whether any promises, force, or threats were used to obtain the
plea.
(b) The court shall not enter judgment upon a plea of guilty or
guilty but mentally ill at the time of the crime unless it is
satisfied from its examination of the defendant or the evidence
presented that there is a factual basis for the plea.
(c) A plea of guilty or guilty but mentally ill at the time of the
crime shall not be deemed to be involuntary under subsection (a)
solely because it is the product of an agreement between the
prosecution and the defense.
As added by Acts 1981, P.L.298, SEC.4. Amended by P.L.320-1983,
SEC.16; P.L.179-1984, SEC.2.
IC 35-35-1-4
Withdrawal of plea; motion; requisites; procedures
35-35-1-4 Sec. 4. (a) A motion to withdraw a plea of not guilty for
the purpose of entering a plea of guilty, or guilty but mentally ill
at the time of the crime, may be made orally in open court and need
not state any reason for the withdrawal of the plea.
(b) After entry of a plea of guilty, or guilty but mentally ill at
the time of the crime, but before imposition of sentence, the court
may allow the defendant by motion to withdraw his plea of guilty, or
guilty but mentally ill at the time of the crime, for any fair and
just reason unless the state has been substantially prejudiced by
reliance upon the defendant's plea. The motion to withdraw the plea
of guilty or guilty but mentally ill at the time of the crime made
under this subsection shall be in writing and verified. The motion
shall state facts in support of the relief demanded, and the state
may file counter-affidavits in opposition to the motion. The ruling
of the court on the motion shall be reviewable on appeal only for an
abuse of discretion. However, the court shall allow the defendant to
withdraw his plea of guilty, or guilty but mentally ill at the time
of the crime, whenever the defendant proves that withdrawal of the
plea is necessary to correct a manifest injustice.
(c) After being sentenced following a plea of guilty, or guilty but
mentally ill at the time of the crime, the convicted person may not
as a matter of right withdraw the plea. However, upon motion of the
convicted person, the court shall vacate the judgment and allow the
withdrawal whenever the convicted person proves that withdrawal is
necessary to correct a manifest injustice. A motion to vacate
judgment and withdraw the plea made under this subsection shall be
treated by the court as a petition for postconviction relief under
the Indiana Rules of Procedure for Postconviction Remedies. For
purposes of this section, withdrawal of the plea is necessary to
correct a manifest injustice whenever:
(1) the convicted person was denied the effective assistance of
counsel;
(2) the plea was not entered or ratified by the convicted person;
(3) the plea was not knowingly and voluntarily made;
(4) the prosecuting attorney failed to abide by the terms of a plea
agreement; or
(5) the plea and judgment of conviction are void or voidable for any
other reason.
The motion to vacate the judgment and withdraw the plea need not
allege, and it need not be proved, that the convicted person is
innocent of the crime charged or that he has a valid defense.
(d) A plea of guilty, or guilty but mentally ill at the time of the
crime, which is not accepted by the court or is withdrawn shall not
be admissible as evidence in any criminal, civil, or administrative
proceeding.
(e) Upon any motion made under this section, the moving party has
the burden of establishing his grounds for relief by a preponderance
of the evidence. The order of the court upon a motion made under
subsection (b) or (c) of this section shall constitute a final
judgment from which the moving party or the state may appeal as
otherwise provided by law. The order of the court upon a motion made
under subsection (a) of this section is not a final judgment and is
not appealable but is reviewable upon appeal from a final judgment
subsequently entered.
As added by Acts 1981, P.L.298, SEC.4. Amended by Acts 1982,
P.L.204, SEC.25; P.L.320-1983, SEC.17.
IC 35-35-2
Chapter 2. Pleadings
IC 35-35-2-1
Pleadings; motions, requisites, and answers
35-35-2-1 Sec. 1. (a) Pleadings in criminal proceedings are:
(1) an indictment;
(2) an information; and
(3) pleas of:
(A) not guilty;
(B) guilty; and
(C) guilty but mentally ill at the time of the crime.
Defenses and objections raised before trial which, before July 26,
1973, could have been raised by a plea in abatement, a plea in bar,
a demurrer, a motion to quash, or any other plea not specifically
allowed under this subsection may be raised only by motion to
dismiss or to grant appropriate relief as provided in this title.
(b) Except as provided in this title, an application to the court
for an order must be by motion. A motion other than one made during
a trial or hearing must be in writing unless the court permits it to
be made orally. It must state the grounds upon which it is made and
set forth the relief or order sought. It may be supported by
affidavit.
(c) Except as provided in this title, whenever the defendant files a
motion, the state may file an answer to that motion. If no answer is
filed by the state, all issues of fact and law raised by the motion
stand at issue and the court shall proceed.
As added by Acts 1981, P.L.298, SEC.4. Amended by Acts 1982,
P.L.204, SEC.26.
IC 35-35-2-2
Rules of procedure applicable
35-35-2-2 Sec. 2. In all criminal cases where no provision has been
made in this title, the Indiana Rules of Trial Procedure govern.
Where no procedure is provided by this title, the trial court may
proceed in any manner consistent with applicable statutes or court
rules.
As added by Acts 1981, P.L.298, SEC.4.
IC 35-35-3
Chapter 3. Plea Agreements
IC 35-35-3-1
Definitions
35-35-3-1 Sec. 1. As used in this chapter:
"Advisory sentence" means the nonbinding guideline sentence defined
in IC 35-50-2-1.3.
"Plea agreement" means an agreement between a prosecuting attorney
and a defendant concerning the disposition of a felony or
misdemeanor charge.
"Prosecuting attorney" includes a deputy prosecuting attorney.
"Recommendation" means a proposal that is part of a plea agreement
made to a court that:
(1) a felony charge be dismissed; or
(2) a defendant, if the defendant pleads guilty to a felony charge,
receive less than the advisory sentence.
"Victim" means a person who has suffered harm as a result of a
crime.
As added by Acts 1981, P.L.298, SEC.4. Amended by Acts 1982,
P.L.204, SEC.27; P.L.320-1983, SEC.18; P.L.71-2005, SEC.1.
IC 35-35-3-2
Felony charge; duties of prosecuting attorney
35-35-3-2 Sec. 2. (a) In making a recommendation on a felony charge,
a prosecuting attorney must:
(1) inform the victim that he has entered into discussions with
defense counsel or the court concerning a recommendation;
(2) inform the victim of the contents of the recommendation before
it is filed; and
(3) notify the victim that the victim is entitled to be present and
may address the court (in person or in writing) when the court
considers the recommendation.
(b) A court may consider a recommendation on a felony charge only if
the prosecuting attorney has complied with this section.
As added by Acts 1981, P.L.298, SEC.4. Amended by P.L.126-1985,
SEC.2.
IC 35-35-3-3
Conditions; presentence report; acceptance or rejection
35-35-3-3 Sec. 3. (a) No plea agreement may be made by the
prosecuting attorney to a court on a felony charge except:
(1) in writing; and
(2) before the defendant enters a plea of guilty.
The plea agreement shall be shown as filed, and if its contents
indicate that the prosecuting attorney anticipates that the
defendant intends to enter a plea of guilty to a felony charge, the
court shall order the presentence report required by IC 35-38-1-8
and may hear evidence on the plea agreement.
(b) Neither the content of the plea agreement, the presentence
report, nor the hearing shall be a part of the official record of
the case unless the court approves the plea agreement. If the plea
agreement is not accepted, the court shall reject it before the case
may be disposed of by trial or by guilty plea. If the court rejects
the plea agreement, subsequent plea agreements may be filed with the
court, subject to the same requirements that this chapter imposes
upon the initial plea agreement.
(c) A plea agreement in a misdemeanor case may be submitted orally
to the court.
(d) In a misdemeanor case, if:
(1) the court rejects a plea agreement; and
(2) the prosecuting attorney or the defendant files a written motion
for change of judge within ten (10) days after the plea agreement is
rejected;
the court shall grant the motion for change of judge and transfer
the proceeding to a special judge under the Indiana Rules of
Criminal Procedure. However, there may not be more than one (1)
transfer of the proceeding to a special judge under this subsection.
(e) If the court accepts a plea agreement, it shall be bound by its
terms.
As added by Acts 1981, P.L.298, SEC.4. Amended by P.L.320-1983,
SEC.19; P.L.136-1987, SEC.4.
IC 35-35-3-4
Inadmissibility at trial
35-35-3-4 Sec. 4. A plea agreement, or a verbal or written
communication concerning the plea agreement, may not be admitted
into evidence at the trial of the case, should the plea agreement
not culminate in approval by the court.
As added by Acts 1981, P.L.298, SEC.4. Amended by P.L.320-1983,
SEC.20.
IC 35-35-3-5
Presentation to and opinion by victim; certification
35-35-3-5 Sec. 5. (a) As a part of the recommendation submitted to
the court, the prosecuting attorney must certify that he has offered
to show the proposed recommendation to the victims of the felony, if
any, and that they have been offered an opportunity to present their
opinion of the recommendation to the prosecuting attorney and the
court.
(b) A victim present at sentencing in a felony or misdemeanor case
shall be advised by the court of a victim's right to make a
statement concerning the crime and the sentence. The court shall
also offer the victim, if present, an opportunity to make a
statement concerning the crime and the sentence. If unable to attend
the hearing, the victim may mail a written statement to the court,
which must be included in the presentence report made with respect
to the defendant.
(c) However, this section gives no additional rights to the
defendant. Failure to comply gives no grounds for postconviction
relief.
As added by Acts 1981, P.L.298, SEC.4. Amended by P.L.126-1985,
SEC.3.
IC 35-35-3-6
Procedure required by IC 35-35-3-5; representatives of deceased or
legal entity victims; multiple victims
35-35-3-6 Sec. 6. (a) If the victim is deceased or is under the age
of eighteen (18) years, the prosecuting attorney shall certify that
he has completed the procedure required by section 5 of this chapter
with at least one (1) of the next of kin or the parent, guardian, or
custodian of the victim. If the victim is a corporation, limited
liability company, association, or governmental entity, the
prosecuting attorney shall certify that he has completed the
procedure with a responsible officer or agent of the entity. If the
victim is a partnership, the prosecuting attorney shall certify that
he has completed the procedure with at least one (1) partner.
(b) If there are more than three (3) victims, the prosecuting
attorney shall complete the procedure required by section 5 of this
chapter with the three (3) who he believes have suffered the most.
As added by Acts 1981, P.L.298, SEC.4. Amended by Acts 1982,
P.L.204, SEC.28; P.L.8-1993, SEC.508.
IC 35-35-3-7
Inability to locate victim or next of kin; certification
35-35-3-7 Sec. 7. If the prosecuting attorney is unable to make a
certification required under section 5 or 6 of this chapter because
he was unable, after a reasonable effort, to locate the victim or
his next of kin, then he shall certify this fact to the court. He
may then submit the recommendation, and the court may act upon it.
As added by Acts 1981, P.L.298, SEC.4.
IC 35-36-2
Chapter 2. Affirmative Defense of Insanity
or Mental Illness; Pleadings, Orders, and Findings
IC 35-36-2-1
Time of filing
35-36-2-1 Sec. 1. When the defendant in a
criminal case intends to interpose the defense of insanity, he must
file a notice of that intent with the trial court no later than:
(1) twenty (20) days if the defendant
is charged with a felony; or
(2) ten (10) days if the defendant is
charged only with one (1) or more misdemeanors;
before the omnibus date. However, in the
interest of justice and upon a showing of good cause, the court may
permit the filing to be made at any time before commencement of the
trial.
As added by Acts 1981, P.L.298, SEC.5. Amended
by Acts 1982, P.L.204, SEC.29.
IC 35-36-2-2
Admissibility of evidence; psychiatrists,
psychologists, or physicians; defendant's failure to communicate,
participate, and cooperate with court appointed medical witnesses
35-36-2-2 Sec. 2. (a) At the trial of a
criminal case in which the defendant intends to interpose the
defense of insanity, evidence may be introduced to prove the
defendant's sanity or insanity at the time at which the defendant is
alleged to have committed the offense charged in the indictment or
information.
(b) When notice of an insanity defense is
filed, the court shall appoint two (2) or three (3) competent
disinterested psychiatrists, psychologists endorsed by the state
psychology board as health service providers in psychology, or
physicians, at least one (1) of whom must be a psychiatrist, to
examine the defendant and to testify at the trial. This testimony
shall follow the presentation of the evidence for the prosecution
and for the defense, including testimony of any medical experts
employed by the state or by the defense.
(c) If a defendant does not adequately
communicate, participate, and cooperate with the medical witnesses
appointed by the court, after being ordered to do so by the court,
the defendant may not present as evidence the testimony of any other
medical witness:
(1) with whom the defendant adequately
communicated, participated, and cooperated; and
(2) whose opinion is based upon
examinations of the defendant;
unless the defendant shows by a preponderance
of the evidence that the defendant's failure to communicate,
participate, or cooperate with the medical witnesses appointed by
the court was caused by the defendant's mental illness.
(d) The medical witnesses appointed by the
court may be cross-examined by both the prosecution and the defense,
and each side may introduce evidence in rebuttal to the testimony of
such a
medical witness.
As added by Acts 1981, P.L.298, SEC.5. Amended
by P.L.321-1983, SEC.2; P.L.19-1986, SEC.59; P.L.149-1987, SEC.119;
P.L.77-2004, SEC.3.
IC 35-36-2-3
Finding of jury
35-36-2-3 Sec. 3. In all cases in which the
defense of insanity is interposed, the jury (or the court if tried
by it) shall find whether the defendant is:
(1) guilty;
(2) not guilty;
(3) not responsible by reason of
insanity at the time of the crime; or
(4) guilty but mentally ill at the time
of the crime.
As added by Acts 1981, P.L.298, SEC.5.
IC 35-36-2-4
Finding of nonresponsibility by reason of
insanity; commitment procedures; requirements of the superintendent
and attending physician
35-36-2-4 Sec. 4. (a) Whenever a defendant
is found not responsible by reason of insanity at the time of the
crime, the prosecuting attorney shall file a written petition with
the court under IC 12-26-6-2(a)(3) or under IC 12-26-7. If a
petition is filed under IC 12-26-6-2(a)(3), the court shall hold a
commitment hearing under IC 12-26-6. If a petition is filed under IC
12-26-7, the court shall hold a commitment hearing under IC 12-26-7.
(b) The hearing shall be conducted at the
earliest opportunity after the finding of not responsible by reason
of insanity at the time of the crime, and the defendant shall be
detained in custody until the completion of the hearing. The court
may take judicial notice of evidence introduced during the trial of
the defendant and may call the physicians appointed by the court to
testify concerning whether the defendant is currently mentally ill
and dangerous or currently mentally ill and gravely disabled, as
those terms are defined by IC 12-7-2-96 and IC 12-7-2-130(1). The
court may subpoena any other persons with knowledge concerning the
issues presented at the hearing.
(c) The defendant has all the rights
provided by the provisions of IC 12-26 under which the petition
against the defendant was filed. The prosecuting attorney may
cross-examine the witnesses and present relevant evidence concerning
the issues presented at the hearing.
(d) If a court orders an individual to be
committed under IC 12-26-6 or IC 12-26-7 following a verdict of not
responsible by reason of insanity at the time of the crime, the
superintendent of the facility to which the individual is committed
and the attending physician are subject to the requirements of IC
12-26-15-1.
As added by Acts 1981, P.L.298, SEC.5. Amended
by P.L.200-1983,
SEC.4; P.L.2-1992, SEC.869; P.L.77-2004, SEC.4.
IC 35-36-2-5
Finding or plea of guilty but mentally ill;
evaluation; sentence; treatment
35-36-2-5 Sec. 5. (a) Except as provided by
subsection (e), whenever a defendant is found guilty but mentally
ill at the time of the crime or enters a plea to that effect that is
accepted by the court, the court shall sentence the defendant in the
same manner as a defendant found guilty of the offense.
(b) Before sentencing the defendant under
subsection (a), the court shall require the defendant to be
evaluated by a physician licensed under IC 25-22.5 who practices
psychiatric medicine, a licensed psychologist, or a community mental
health center (as defined in IC 12-7-2-38). However, the court may
waive this requirement if the defendant was evaluated by a physician
licensed under IC 25-22.5 who practices psychiatric medicine, a
licensed psychologist, or a community mental health center and the
evaluation is contained in the record of the defendant's trial or
plea agreement hearing.
(c) If a defendant who is found guilty but
mentally ill at the time of the crime is committed to the department
of correction, the defendant shall be further evaluated and then
treated in such a manner as is psychiatrically indicated for the
defendant's mental illness. Treatment may be provided by:
(1) the department of correction; or
(2) the division of mental health and
addiction after transfer under IC 11-10-4.
(d) If a defendant who is found guilty but
mentally ill at the time of the crime is placed on probation, the
court may, in accordance with IC 35-38-2-2.3, require that the
defendant undergo treatment.
(e) As used in this subsection, "mentally
retarded individual" has the meaning set forth in IC 35-36-9-2. If a
court determines under IC 35-36-9 that a defendant who is charged
with a murder for which the state seeks a death sentence is a
mentally retarded individual, the court shall sentence the defendant
under IC 35-50-2-3(a).
As added by Acts 1981, P.L.298, SEC.5. Amended
by P.L.320-1983, SEC.21; P.L.1-1991, SEC.191; P.L.2-1992, SEC.870;
P.L.1-1993, SEC.239; P.L.158-1994, SEC.2; P.L.121-1996, SEC.3;
P.L.215-2001, SEC.108.
IC 35-36-3
Chapter 3. Comprehension to Stand Trial
IC 35-36-3-1
Hearing; psychiatric examination; delay or
continuance of trial; confinement in psychiatric institution;
competency restoration services
35-36-3-1 Sec. 1. (a) If at any time before
the final submission of any criminal case to the court or the jury
trying the case, the court has reasonable grounds for believing that
the defendant lacks the ability to understand the proceedings and
assist in the preparation of a defense, the court shall immediately
fix a time for a hearing to determine whether the defendant has that
ability. The court shall appoint two (2) or three (3) competent,
disinterested:
(1) psychiatrists; or
(2) psychologists endorsed by the
Indiana state board of examiners in psychology as health service
providers in psychology.
At least one (1) of the individuals appointed
under this subsection must be a psychiatrist. However, none may be
an employee or a contractor of a state institution (as defined in IC
12-7-2-184). The individuals who are appointed shall examine the
defendant and testify at the hearing as to whether the defendant can
understand the proceedings and assist in the preparation of the
defendant's defense.
(b) At the hearing, other evidence relevant
to whether the defendant has the ability to understand the
proceedings and assist in the preparation of the defendant's defense
may be introduced. If the court finds that the defendant has the
ability to understand the proceedings and assist in the preparation
of the defendant's defense, the trial shall proceed. If the court
finds that the defendant lacks this ability, it shall delay or
continue the trial and order the defendant committed to the division
of mental health and addiction. The division of mental health and
addiction shall provide competency restoration services or enter
into a contract for the provision of competency restoration services
by a third party in the:
(1) location where the defendant
currently resides; or
(2) least restrictive setting
appropriate to the needs of the defendant and the safety of the
defendant and others.
However, if the defendant is serving an
unrelated executed sentence in the department of correction at the
time the defendant is committed to the division of mental health and
addiction under this section, the division of mental health and
addiction shall provide competency restoration services or enter
into a contract for the provision of competency restoration services
by a third party at a department of correction facility agreed upon
by the division of mental health and addiction or the third party
contractor and the department of correction.
As added by Acts 1981, P.L.298, SEC.5. Amended
by P.L.321-1983, SEC.3; P.L.19-1986, SEC.60; P.L.2-1992, SEC.871;
P.L.215-2001, SEC.109; P.L.77-2004, SEC.5.
IC 35-36-3-2
Attainment of ability to stand trial;
certification; return to court; order; trial
35-36-3-2 Sec. 2. Whenever the defendant
attains the ability to understand the proceedings and assist in the
preparation of the defendant's defense:
(1) the superintendent of the state
institution (as defined in IC 12-7-2-184); or
(2) if the division of mental health
and addiction entered into a contract for the provision of
competency restoration services, the director or medical director of
the third party contractor;
shall certify that fact to the proper court,
which shall enter an order directing the sheriff to return the
defendant. The court shall enter such an order immediately after
being sufficiently advised of the defendant's attainment of the
ability to understand the proceedings and assist in the preparation
of the defendant's defense. Upon the return to court of any
defendant committed under section 1 of this chapter, the court shall
hold the trial as if no delay or postponement had occurred.
As added by Acts 1981, P.L.298, SEC.5. Amended
by P.L.2-1992, SEC.872; P.L.215-2001, SEC.110; P.L.77-2004, SEC.6.
IC 35-36-3-3
Substantial probability of attainment of
comprehension to stand trial; certification; commitment proceedings;
duration of retention
35-36-3-3 Sec. 3. (a) Within ninety (90)
days after:
(1) a defendant's admission to a state
institution (as defined in IC 12-7-2-184); or
(2) the initiation of competency
restoration services to a defendant by a third party contractor;
the superintendent of the state institution (as
defined in IC 12-7-2-184) or the director or medical director of the
third party contractor, if the division of mental health and
addiction has entered into a contract for the provision of
competency restoration services by a third party, shall certify to
the proper court whether the defendant has a substantial probability
of attaining the ability to understand the proceedings and assist in
the preparation of the defendant's defense within the foreseeable
future.
(b) If a substantial probability does not
exist, the state institution (as defined in IC 12-7-2-184) or the
third party contractor shall initiate regular commitment proceedings
under IC 12-26. If a substantial probability does exist, the state
institution (as defined in IC 12-7-2-184) or third party contractor
shall retain the defendant:
(1) until the defendant attains the
ability to understand the proceedings and assist in the preparation
of the defendant's defense and is returned to the proper court for
trial; or
(2) for six (6) months from the date of
the:
(A) defendant's admission to a
state institution (as defined in IC 12-7-2-184); or (B)
initiation of competency restoration services by a third party
contractor;
whichever first occurs.
As added by Acts 1981, P.L.298, SEC.5. Amended
by P.L.2-1992, SEC.873; P.L.215-2001, SEC.111; P.L.77-2004, SEC.7.
IC 35-36-3-4
Inability to attain comprehension to stand
trial; commitment proceedings
35-36-3-4 Sec. 4. If a defendant who was
found under section 3 of this chapter to have had a substantial
probability of attaining the ability to understand the proceedings
and assist in the preparation of the defendant's defense has not
attained that ability within six (6) months after the date of the:
(1) defendant's admission to a state
institution (as defined in IC 12-7-2-184); or
(2) initiation of competency
restoration services by a third party contractor;
the state institution (as defined in IC
12-7-2-184) or the third party contractor, if the division of mental
health and addiction has entered into a contract for the provision
of competency restoration services by a third party, shall institute
regular commitment proceedings under IC 12-26.
As added by Acts 1981, P.L.298, SEC.5. Amended
by P.L.2-1992, SEC.874; P.L.215-2001, SEC.112; P.L.77-2004, SEC.8.
IC 35-36-4
Chapter 4. Notice of Alibi Defense
IC 35-36-4-1
Time of filing; requisite information
35-36-4-1 Sec. 1. Whenever a defendant in a criminal case intends to
offer in his defense evidence of alibi, the defendant shall, no
later than:
(1) twenty (20) days prior to the omnibus date if the defendant is
charged with a felony; or
(2) ten (10) days prior to the omnibus date if the defendant is
charged only with one (1) or more misdemeanors;
file with the court and serve upon the prosecuting attorney a
written statement of his intention to offer such a defense. The
notice must include specific information concerning the exact place
where the defendant claims to have been on the date stated in the
indictment or information.
As added by Acts 1981, P.L.298, SEC.5. Amended by Acts 1982,
P.L.204, SEC.30.
IC 35-36-4-2
Reply by prosecutor; second statement by defendant; filing and
service
35-36-4-2 Sec. 2. (a) When a defendant files a notice of alibi, the
prosecuting attorney shall file with the court and serve upon the
defendant, or upon his counsel, a specific statement containing:
(1) the date the defendant was alleged to have committed the crime;
and
(2) the exact place where the defendant was alleged to have
committed the crime;
that he intends to present at trial. However, the prosecuting
attorney need not comply with this requirement if he intends to
present at trial the date and place listed in the indictment or
information as the date and place of the crime.
(b) If a reply by the prosecuting attorney is required by subsection
(a) of this section, the prosecuting attorney shall serve such a
statement upon the defendant, or his counsel, within seven (7) days
after the filing of the defendant's first notice of alibi.
(c) If the prosecuting attorney's statement to the defendant
contains a date or place other than the date or place stated in the
defendant's original statement, the defendant shall file a second
statement of alibi if the defendant intends to produce at trial
evidence of an alibi for the date or place contained in the
prosecutor's statement. The defendant shall:
(1) file the second statement with the court; and
(2) serve the second statement upon the prosecuting attorney;
within four (4) days after the filing of the prosecuting attorney's
statement. The defendant's second statement must contain the same
details required in the defendant's original statement.
As added by Acts 1981, P.L.298, SEC.5.
IC 35-36-4-3
Failure to file or serve statements; extension of time; exclusion of
evidence
35-36-4-3 Sec. 3. (a) If either the defendant or the prosecuting
attorney fails to file or serve statements in accordance with
section 2 of this chapter, the judge may extend the time for filing.
(b) If at the trial it appears that the defendant has failed to file
and serve an original statement of alibi in accordance with section
1 of this chapter, and if the defendant does not show good cause for
his failure, then the court shall exclude evidence offered by the
defendant to establish an alibi.
(c) If at the trial it appears that the prosecuting attorney has
failed to file and serve his statement in accordance with section
2(a) of this chapter, and if the prosecuting attorney does not show
good cause for his failure, then the court shall exclude evidence
offered by the prosecuting attorney to show:
(1) that the defendant was at a place other than the place stated in
the information or indictment; and
(2) that the date was other than the date stated in the information
or indictment.
(d) If at the trial it appears that the defendant has failed to file
and serve a second statement in accordance with section 2(c) of this
chapter, and if the defendant does not show good cause for his
failure, then the court shall exclude evidence offered by the
defendant to establish that:
(1) he was at a place other than the place specified in the
prosecuting attorney's statement; or
(2) the date was other than the date stated in the prosecuting
attorney's statement.
As added by Acts 1981, P.L.298, SEC.5.
IC 35-36-5
Chapter 5. Change of Judge
IC 35-36-5-1
Preemptory change of venue from judge;
procedure
35-36-5-1 Sec. 1. In any criminal action,
either the defendant or the state is entitled as a substantive right
to a preemptory change of venue from the judge without specifically
stating the reason. The defendant or the state may obtain a change
of judge under this section by motion filed in a manner and within
the time limitations as specified in the Indiana Rules of Criminal
Procedure. Each party is entitled to only one (1) change of judge
under this section.
As added by Acts 1981, P.L.298, SEC.5. Amended
by P.L.170-1984, SEC.4.
IC 35-36-5-2
Other grounds; motion; affidavit; time
limitation
35-36-5-2 Sec. 2. The defendant and the
state may obtain a change of judge if the judge:
(1) is biased or prejudiced against the
moving party and that the moving party cannot obtain a fair trial
before the judge;
(2) is related by blood or marriage to
any party to the cause;
(3) is unable to properly perform the
functions of his office because of mental or physical disabilities;
(4) is disqualified by reason of any
conflict of interest; or
(5) should be disqualified for any
other cause.
A motion made under this section must be
verified or accompained by an affidavit specifically stating facts
showing that at least one (1) of these causes exists.
The motion must be filed within the time
limitations specified in Indiana Rules of Criminal Procedure.
As added by Acts 1981, P.L.298, SEC.5.
IC 35-36-6
Chapter 6. Change of Venue
IC 35-36-6-1
Verified motion by defendant; bias or
prejudice; hearing; duties of clerk and sheriff
35-36-6-1 Sec. 1. (a) In any criminal
action, the defendant may request a change of venue from the county
by filing a verified motion for change of venue alleging that bias
or prejudice against the defendant exists in that county.
(b) When a motion for a change of venue is
filed, the court shall hold a hearing on the motion and may grant a
change of venue to the most convenient county. When a change of
venue is granted, the clerk shall immediately:
(1) make a transcript of the
proceedings and orders of the court;
(2) seal the transcript with the
original papers; and
(3) deliver them to the sheriff.
The sheriff shall immediately deliver them to
the clerk's office of the proper county, and make his return
accordingly. However, only one (1) change of venue from the county
may be granted.
As added by Acts 1981, P.L.298, SEC.5. Amended
by P.L.311-1983, SEC.48; P.L.170-1984, SEC.5.
IC 35-36-6-2
Trial in court to which venued
35-36-6-2 Sec. 2. After a change of venue,
the cause shall be docketed and stand for trial. The court to which
the case has been venued shall proceed in all respects as if the
indictment had been found and returned by a grand jury impaneled in
that court, or as if the information had been originally filed in
that court.
As added by Acts 1981, P.L.298, SEC.5.
IC 35-36-6-3
Transfer of custody of defendant
35-36-6-3 Sec. 3. When ordered to do so by
the court allowing a change of venue, the sheriff of the county from
which change of venue is granted, when the defendant is in his
custody, shall:
(1) transfer and deliver custody of the
defendant; and
(2) deliver a certified copy of the
order for change of venue at the same time the defendant is
delivered;
to the sheriff of the county to which change of
venue has been granted. The sheriff of the county to which change of
venue has been granted shall receive the defendant and detain him in
custody until the defendant is discharged from his custody. The
sheriff who receives the defendant shall give a certificate that he
has received the defendant to the sheriff of the county from which
change of venue has been granted.
As added by Acts 1981, P.L.298, SEC.5.
IC 35-36-6-4 New prosecution; election of court
by defendant; alternative disposition
35-36-6-4 Sec. 4. If it is necessary to
institute a new prosecution for the same offense after a change of
venue has been taken, the defendant in the case shall elect, when
required to do so by the court, the court in which he prefers the
new prosecution to be instituted. He may choose either the court
from which venue was granted or the court to which venue was
granted, and, after his choice, further prosecution shall be
instituted in that court. The defendant may then be:
(1) recognized to appear in the court
which he elects;
(2) committed for want of bail;
(3) detained in custody; or
(4) remanded to the county from which
the change was taken;
as the case may require and in accordance with
the defendant's choice of courts.
As added by Acts 1981, P.L.298, SEC.5.
IC 35-36-6-5
New prosecution; recognizance
35-36-6-5 Sec. 5. If in a new prosecution
for the same offense, the defendant gives recognizance to appear
before the court of the county from which the change of venue was
taken, the recognizance shall be taken of record, and shall be
recorded by the clerk of that court.
As added by Acts 1981, P.L.298, SEC.5.
IC 35-36-6-6
New prosecution; new indictment or information
35-36-6-6 Sec. 6. If on a new prosecution a
defendant is prosecuted for the offense in the court to which the
change of venue was taken, a new indictment may be found, or a new
information may be filed, and the case may be prosecuted to final
execution as if the offense had been committed in the county of that
court. However, the indictment or information in such a case must
state how the proceeding came into the court where the party elects
to be tried, and that he has elected to be tried in that county.
As added by Acts 1981, P.L.298, SEC.5.
IC 35-36-6-7
Failure of defendant to elect county of trial;
remand
35-36-6-7 Sec. 7. If in a new prosecution
for the same offense the defendant refuses to elect in which county
the new prosecution is to be instituted, he shall be recognized to
appear before or be remanded to the proper court of the county from
which the change of venue was taken, as if he had elected to be
proceeded against in the county from which the change of venue was
taken.
As added by Acts 1981, P.L.298, SEC.5.
IC 35-36-6-8 Costs and expenses; liability;
audit, certification, and collection
35-36-6-8 Sec. 8. (a) In all changes of
venue from the county, the county from which the change is taken is
liable for:
(1) the expenses and charges of
removing, delivering, and keeping the defendant;
(2) the per diem allowance and expenses
of:
(A) the jury trying the cause; and
(B) any of the regular panel in
attendance and not engaged in the trial; and
(3) all other expenses necessarily
incurred by the county to which the change is taken that result from
the change of venue.
(b) All costs and charges included under
subsection (a) shall be audited and allowed by the court trying the
cause, certified to the auditor of the county from which the change
of venue was first taken, and collected by the auditor of the county
to which the change was taken. However, where specific fees are
allowed by law for any duty or service, no additional costs may be
allowed for that duty or service than could be legally taxed in the
court from which the change was taken.
As added by Acts 1981, P.L.298, SEC.5.
IC 35-36-6-9
Prosecuting attorney; pauper counsel;
appointment; reimbursement for fees and expenses
35-36-6-9 Sec. 9. (a) In a criminal
prosecution, if a change of venue has been taken from the county in
which the prosecution originated, the prosecuting attorney from the
original county shall prosecute the case in the trial court to which
the case was venued. The trial court to which the case was venued
may appoint a prosecuting attorney to assist on the case.
(b) In a case described in subsection (a),
if the defendant is entitled to pauper counsel, the original trial
court shall furnish pauper counsel. The trial court to which the
case was venued may remove from the case the pauper counsel
furnished by the original trial court, and:
(1) request the original trial court to
furnish another pauper counsel;
(2) appoint pauper counsel of its
choice; or
(3) request the public defender of the
state of Indiana to provide counsel under IC 33-40-2.
(c) The original trial court shall
determine the amount of the fee and the expenses incurred by the
pauper counsel and shall order the appropriate reimbursement to be
paid to him by the county in which the prosecution originated. The
fees and expenses of a public defender appointed under IC 33-40-2
shall be paid in accordance with that chapter.
As added by Acts 1981, P.L.298, SEC.5. Amended
by P.L.98-2004, SEC.147.
IC 35-36-6-10 Sheriff; expenses of
transportation
35-36-6-10 Sec. 10. The sheriff of the
county from which venue was taken shall receive actual and necessary
expenses for transporting himself and his prisoner, in accordance
with this chapter, from the county from which venue was taken to the
county receiving the case. The court from which venue was taken
shall allow these expenses.
As added by Acts 1981, P.L.298, SEC.5.
IC 35-36-6-11
Murder or Class A felony proceedings; selection
of jury; verdict and judgment
35-36-6-11 Sec. 11. (a) In any criminal
proceeding wherein the defendant is charged with murder or a Class A
felony to be tried before a jury in which a motion for a change of
venue from the county is filed, the court may recognize but decline
to grant the motion, and order that the jury be drawn from the
residents of a county other than the county in which the court is
located.
(b) Pursuant to an order under this
section, the court may convene in any county in the state for
purposes of jury selection. The venire may be drawn by the jury
commissioners of a court in the jurors' home county, or may be drawn
by the court itself by random selection.
(c) After a jury is selected, the trial
shall be held in the county of the court's location. The verdict of
the jury and the judgment based upon it have the same validity and
effect as if the jury had been drawn from the county of the court's
location.
As added by P.L.1-1998, SEC.61.
IC 35-36-7
Chapter 7. Continuances
IC 35-36-7-1
Motion by defendant; affidavit; grounds; requisite; contents
35-36-7-1 Sec. 1. (a) A motion by a defendant to postpone a trial
because of the absence of evidence may be made only on affidavit
showing:
(1) that the evidence is material;
(2) that due diligence has been used to obtain the evidence; and
(3) the location of the evidence.
(b) If a defendant's motion to postpone is because of the absence of
a witness, the affidavit required under subsection (a) must:
(1) show the name and address of the witness, if known;
(2) indicate the probability of procuring the witness's testimony
within a reasonable time;
(3) show that the absence of the witness has not been procured by
the act of the defendant;
(4) state the facts to which the defendant believes the witness will
testify, and include a statement that the defendant believes these
facts to be true; and
(5) state that the defendant is unable to prove the facts specified
in accordance with subdivision (4) through the use of any other
witness whose testimony can be as readily procured.
(c) The trial may not be postponed if:
(1) after a motion by the defendant to postpone because of the
absence of a witness, the prosecuting attorney admits that the
absent witness would testify to the facts as alleged by the
defendant in his affidavit in accordance with subsection (b)(4); or
(2) after a motion by the defendant to postpone because of the
absence of written or documentary evidence, the prosecuting attorney
admits that the written or documentary evidence exists.
(d) A defendant must file an affidavit for a continuance not later
than five (5) days before the date set for trial. If a defendant
fails to file an affidavit by this time, then he must establish, to
the satisfaction of the court, that he is not at fault for failing
to file the affidavit at an earlier date.
(e) If a motion for a continuance is based on the illness of the
defendant or of a witness, it must be accompanied by:
(1) oral testimony, given in open court; or
(2) a written statement;
of a physician or hospital official having the care or custody of
the defendant or witness, presenting the nature of the illness and
the probable duration of the person's incapacity to attend trial.
Such a written statement must be sworn to by the person making the
statement before an officer authorized to administer an oath. The
court may appoint a physician to examine the defendant or witness
and report to the court on the nature of the person's illness and of
his incapacity to attend trial. The court shall by order provide for
compensation for such a physician.
As added by Acts 1981, P.L.298, SEC.5.
IC 35-36-7-2
Motion by prosecuting attorney; absence of witness or written or
documentary evidence; official statement; requisites
35-36-7-2 Sec. 2. (a) A prosecuting attorney may move to postpone
the trial of a criminal cause because of the absence of a witness
whose name is endorsed on the indictment or information, if he makes
an official statement:
(1) containing the requirements of subsections (b)(1) and (b)(2) of
section 1 of this chapter;
(2) showing that the absence of the witness has not been procured by
the act of the prosecuting attorney;
(3) stating the facts to which he believes the witness will testify,
and include a statement that he believes these facts to be true; and
(4) stating that the prosecuting attorney is unable to prove the
facts specified in accordance with subdivision (3) through the use
of any other witness whose testimony can be as readily procured.
Upon request of the defendant the court shall order that the
prosecuting attorney's motion and official statement be made in
writing.
(b) The trial may not be postponed if:
(1) after a motion by the prosecuting attorney because of the
absence of a witness, the defendant admits that the absent witness
would testify to the facts as alleged by the prosecuting attorney in
his official statement in accordance with subsection (a)(3); or
(2) after a motion by the prosecuting attorney to postpone because
of the absence of written or documentary evidence, the defendant
admits that the written or documentary evidence exists.
As added by Acts 1981, P.L.298, SEC.5.
IC 35-36-7-3
Postponements; adverse impact upon certain children
35-36-7-3 Sec. 3. (a) This section applies to criminal actions for
felonies under IC 35-42, for neglect of a dependent (IC 35-46-1-4),
and for attempts of those felonies (IC 35-41-5-1).
(b) If a motion is made to postpone a trial or other court
proceeding that involves an offense listed in subsection (a), the
court shall consider whether a postponement will have an adverse
impact upon a child who is less than ten (10) years of age and who:
(1) is the alleged victim of an offense listed in subsection (a); or
(2) will be a witness in the trial.
As added by P.L.203-1986, SEC.1. Amended by P.L.11-1987, SEC.33.
IC 35-36-8
Chapter 8. Omnibus Date, Pretrial Hearing, and Pretrial Conference
IC 35-36-8-1
Omnibus date; setting; purpose; notice; time limits
35-36-8-1 Sec. 1. (a) This subsection applies to persons charged
with a felony. A date, known as the omnibus date:
(1) must be set by the judicial officer at the initial hearing; and
(2) must be no earlier than forty-five (45) days and no later than
seventy-five (75) days after the completion of the initial hearing,
unless the prosecuting attorney and the defendant agree to a
different date.
(b) The purpose of the omnibus date is to establish a point in time
from which various deadlines under this article are established. The
court shall direct the clerk to notify the defendant and all counsel
of record of the omnibus date.
(c) The omnibus date for persons charged only with one (1) or more
misdemeanors:
(1) must be set by the judicial officer at the completion of the
initial hearing;
(2) must be no earlier than thirty (30) days (unless the defendant
and the prosecuting attorney agree to an earlier date), and no later
than sixty-five (65) days, after the initial hearing; and
(3) is the trial date.
(d) Once the omnibus date is set, it remains the omnibus date for
the case until final disposition, unless:
(1) the defendant requests a trial within time limits established by
the Indiana rules of criminal procedure for early trial motions;
(2) subsequent counsel enters an appearance after the omnibus date
and previous counsel withdrew or was removed due to:
(A) a conflict of interest; or
(B) a manifest necessity required that counsel withdraw from the
case;
(3) the state has not complied with an order to compel discovery; or
(4) the prosecuting attorney and the defendant agree to continue the
omnibus date.
As added by Acts 1981, P.L.298, SEC.5. Amended by Acts 1982,
P.L.204, SEC.31; P.L.320-1983, SEC.22; P.L.314-1985, SEC.1.
IC 35-37
ARTICLE 37. TRIAL PROCEDURE
IC 35-37-1
Chapter 1. Jury Selection
IC 35-37-1-1
Venire called; number of jurors
35-37-1-1 Sec. 1. (a) The jury venire called by a court may be used
in civil or criminal cases.
(b) If a defendant is charged with:
(1) murder, a Class A felony, a Class B felony or a Class C felony,
the jury shall consist of twelve (12) qualified jurors unless the
defendant and prosecuting attorney agree to a lesser number; or
(2) any other crime, the jury shall consist of six (6) qualified
jurors.
As added by Acts 1981, P.L.298, SEC.6.
IC 35-37-1-2
Trial by court or jury
35-37-1-2 Sec. 2. The defendant and prosecuting attorney, with the
assent of the court, may submit the trial to the court. All other
trials must be by jury.
As added by Acts 1981, P.L.298, SEC.6.
IC 35-37-1-3
Peremptory challenges by defendant
35-37-1-3 Sec. 3. (a) In prosecutions for murder where the death
penalty is sought, the defendant may challenge, peremptorily, twenty
(20) jurors.
(b) In prosecutions for murder, where the death penalty is not
sought, and Class A, Class B, or Class C felonies, the defendant may
challenge, peremptorily, ten (10) jurors.
(c) In prosecutions for all other crimes, the defendant may
challenge, peremptorily, five (5) jurors.
(d) When several defendants are tried together, they must join in
their challenges.
As added by Acts 1981, P.L.298, SEC.6. Amended by Acts 1982,
P.L.204, SEC.32.
IC 35-37-1-4
Peremptory challenges of prosecuting attorney
35-37-1-4 Sec. 4. The prosecuting attorney shall have the same
number of peremptory challenges as the defendant has in like cases.
As added by Acts 1981, P.L.298, SEC.6.
IC 35-37-1-5
Good causes for challenge; opinion on guilt or innocence 35-37-1-5
Sec. 5. (a) The following are good causes for challenge to any
person called as a juror in any criminal trial:
(1) That the person was a member of the grand jury that found the
indictment.
(2) That the person has formed or expressed an opinion as to the
guilt or innocence of the defendant. However, such an opinion is
subject to subsection (b).
(3) If the state is seeking a death sentence, that the person
entertains such conscientious opinions as would preclude the person
from recommending that the death penalty be imposed.
(4) That the person is related within the fifth degree to the person
alleged to be the victim of the offense charged, to the person on
whose complaint the prosecution was instituted, or to the defendant.
(5) That the person has served on a trial jury which was sworn in
the same case against the same defendant, and which jury was
discharged after hearing the evidence, or rendered a verdict which
was set aside.
(6) That the person served as a juror in a civil case brought
against the defendant for the same act.
(7) That the person has been subpoenaed in good faith as a witness
in the case.
(8) That the person is a mentally incompetent person.
(9) That the person is an alien.
(10) That the person has been called to sit on the jury at the
person's own solicitation or that of another.
(11) That the person is biased or prejudiced for or against the
defendant.
(12) That the person does not have the qualifications for a juror
prescribed by law.
(13) That, from defective sight or hearing, ignorance of the English
language, or other cause, the person is unable to comprehend the
evidence and the instructions of the court.
(14) That the person has a personal interest in the result of the
trial.
(15) If the person is not a member of the regular panel, that the
person has served on a jury within twelve (12) months immediately
preceding the trial.
(b) If a person called as a juror states that the person has formed
or expressed an opinion as to the guilt or innocence of the
defendant, the court or the parties shall proceed to examine the
juror on oath as to the grounds of the juror's opinion. If the
juror's opinion appears to have been founded upon reading newspaper
statements, communications, comments, reports, rumors, or hearsay,
and if:
(1) the juror's opinion appears not to have been founded upon:
(A) conversation with a witness of the transaction;
(B) reading reports of a witness' testimony; or
(C) hearing a witness testify;
(2) the juror states on oath that the juror feels able,
notwithstanding the juror's opinion, to render an impartial
verdict upon the law and evidence; and
(3) the court is satisfied that the juror will render an impartial
verdict;
the court may admit the juror as competent to serve in the case.
As added by Acts 1981, P.L.298, SEC.6. Amended by P.L.169-1988,
SEC.7; P.L.33-1989, SEC.125.
IC 35-37-1-6
Challenges for cause; time; summary trial
35-37-1-6 Sec. 6. All challenges for cause shall be made before the
jury is sworn to try the cause, and shall be summarily tried by the
court on the oath of the party challenged or other evidence.
As added by Acts 1981, P.L.298, SEC.6.
IC 35-37-1-7
Bystanders; summons; limitations
35-37-1-7 Sec. 7. Whenever it becomes necessary to summon a juror
from the bystanders, the court shall instruct the sheriff not to
call a person as a juror who has either solicited or been
recommended for the position. The court may, of its own motion or at
the request of either party, direct the sheriff to summon the
talesmen from persons outside the courthouse.
As added by Acts 1981, P.L.298, SEC.6.
IC 35-37-2
Chapter 2. Trial Proceedings
IC 35-37-2-1
Preliminary instructions
35-37-2-1 Sec. 1. The court shall give the jury preliminary
instructions.
As added by Acts 1981, P.L.298, SEC.6.
IC 35-37-2-2
Order of trial; statement of case; presentation of evidence;
arguments of counsel; instructions
35-37-2-2 Sec. 2. After the jury is impaneled and sworn, the trial
shall proceed in the following order:
(1) The prosecuting attorney shall state the case of the prosecution
and briefly state the evidence by which he expects to support it,
and the defendant may then state his defense and briefly state the
evidence he expects to offer in support of his defense.
(2) The prosecuting attorney shall then offer the evidence in
support of the prosecution, and the defendant shall then offer the
evidence in support of his defense.
(3) The parties may then respectively offer rebutting evidence only,
unless the court, for good reason and in furtherance of justice,
permits them to offer evidence upon their original case.
(4) When the evidence is concluded the prosecuting attorney and the
defendant or his counsel may, by agreement in open court, submit the
case to the court or jury trying the case, without argument. If the
case is not submitted without argument, the prosecuting attorney
shall have the opening and closing of the argument. However, the
prosecuting attorney shall disclose in the opening all the points
relied on in the case, and if in the closing he refers to any new
point or fact not disclosed in the opening, the defendant or his
counsel may reply to that point or fact, and that reply shall close
the argument of the case. If the prosecuting attorney refuses to
open the argument, the defendant or his counsel may then argue the
case. If the defendant or his counsel refuses to argue the case
after the prosecuting attorney has made his opening argument, that
shall be the only argument allowed in the case.
(5) The court shall then charge the jury. The judge shall:
(A) make the charge to the jury in writing;
(B) number each instruction; and
(C) sign the charge;
if, at any time before the commencement of the argument, he has been
requested to do so by the prosecuting attorney, the defendant, or
the defendant's counsel. In charging the jury, the court must state
to them all matters of law which are necessary for their information
in giving their verdict. The judge shall inform the jury that they
are the exclusive judges of all
questions of fact, and that they have a right, also, to determine
the law. The court may send the instructions to the jury room.
(6) If the prosecuting attorney, the defendant, or the defendant's
counsel desires special instructions to be given to the jury, these
instructions must be:
(A) reduced to writing;
(B) numbered;
(C) accompanied by an affixed cover sheet that refers to the
instructions by number and that is signed by the party, or his
attorney, who is requesting the special instructions; and
(D) delivered to the court;
before the commencement of the argument. A charge of the court or
any special instructions, when written and given by the court under
this subdivision, may not be orally qualified, modified, or in any
manner orally explained to the jury by the court. If final
instructions are submitted to the jury in written form after having
been read by the court, no indication of the party or parties
tendering any of the instructions may appear on any instruction.
As added by Acts 1981, P.L.298, SEC.6. Amended by P.L.315-1985,
SEC.1.
IC 35-37-2-3
Preliminary instructions; personal knowledge of material fact by
juror; disclosure; examination; excuse of juror or panel
35-37-2-3 Sec. 3. (a) As a part of the preliminary instructions, the
court shall instruct the jurors that if a juror realizes, during the
course of the trial, that he has personal knowledge of any fact
material to the cause, he shall inform the bailiff that he believes
he has this knowledge at the next recess or upon adjournment,
whichever is sooner. The bailiff shall inform the court of the
juror's belief, and the court shall examine the juror under oath in
the presence of the parties and outside the presence of the other
jurors concerning his personal knowledge of any material fact.
(b) If the court finds that the juror has personal knowledge of a
material fact, the juror shall be excused and the court shall
replace that juror with an alternate. If there is no alternate
juror, then the court shall discharge the jury without prejudice,
unless the parties agree to submit the cause to the remaining
jurors.
As added by Acts 1981, P.L.298, SEC.6.
IC 35-37-2-4
Preliminary instructions; admonition by court; separation
35-37-2-4 Sec. 4. (a) The court shall admonish the jurors in the
preliminary instruction, before separating for meals, and at the end
of the day, that it is their duty not to converse among themselves
or permit others to converse with them on any subject connected with
the trial, or to form or express any opinion about the case until
the cause is finally submitted to them.
(b) The jurors may separate when court is adjourned for the day,
unless the court finds that the jurors should be sequestered in
order to assure a fair trial.
As added by Acts 1981, P.L.298, SEC.6.
IC 35-37-2-5
View by jury
35-37-2-5 Sec. 5. Whenever:
(1) the court believes that it is proper; or
(2) a party to the case makes a motion;
for the jury to have a view of the place in which any material fact
occurred, the court may order the jury to be conducted in a body,
under the charge of an officer, to the place, which shall be shown
to them by some person appointed by the court for that purpose.
While the jury is absent for this reason, no person, other than the
officer and the person appointed to show them the place, may speak
to the jurors on any subject connected with the trial.
As added by Acts 1981, P.L.298, SEC.6.
IC 35-37-2-6
Retirement and deliberation of jury; officer in charge; restrictions
35-37-2-6 Sec. 6. (a) After hearing the charge, the jury shall
retire to the jury room for deliberation. They shall retire under
the charge of an officer, who shall be sworn by the court to:
(1) keep the jury together in the jury room or other place ordered
by the court;
(2) furnish them food as directed by the court; and
(3) not permit any person to speak or communicate with them.
(b) An officer may not communicate with a juror except:
(1) as provided in sections 2 and 4 of this chapter;
(2) to ask them if they have agreed on a verdict; or
(3) when ordered to do so by the court.
As added by Acts 1981, P.L.298, SEC.6.
IC 35-37-2-7
Verdict; rendering in open court; polling of jury
35-37-2-7 Sec. 7. When the jury has agreed upon its verdict, the
officer having the jurors in his charge shall conduct them into
court. If all jurors appear, their verdict must be rendered in open
court. If all do not appear, the court shall discharge the jury
without prejudice. The prosecuting attorney and the parties are
entitled, in all criminal cases, to have the jury polled.
As added by Acts 1981, P.L.298, SEC.6.
IC 35-37-3
Chapter 3. Witness Immunity
IC 35-37-3-1
Refusal of witness to answer or produce item;
hearing; decision on right to refuse
35-37-3-1 Sec. 1. (a) If a witness, in any
hearing or trial occurring after an indictment or information has
been filed, refuses to answer any question or produce any item, the
court shall remove the jury, if one is present, and immediately
conduct a hearing on the witness's refusal. After such a hearing,
the court shall decide whether the witness is required to answer the
question or produce the item.
(b) If the prosecuting attorney has reason
to believe that a witness will refuse to answer a question or
produce an item during any criminal trial, the prosecuting attorney
may submit the question or request to the trial court. The court
shall hold a hearing to determine if the witness may refuse to
answer the question or produce the item.
As added by Acts 1981, P.L.298, SEC.6.
IC 35-37-3-2
Self-incrimination; request for use immunity
35-37-3-2 Sec. 2. If the court determines
that the witness, based upon his privilege against
self-incrimination, may properly refuse to answer a question or
produce an item, the prosecuting attorney may make a written request
that the court grant use immunity to the witness, in accordance with
section 3 of this chapter.
As added by Acts 1981, P.L.298, SEC.6.
IC 35-37-3-3
Grant of use immunity; instruction of witness;
contempt; perjury
35-37-3-3 Sec. 3. (a) Upon request of the
prosecuting attorney, the court shall grant use immunity to a
witness. The court shall instruct the witness, by written order or
in open court, that any evidence the witness gives, or evidence
derived from that evidence, may not be used in any criminal
proceeding against that witness, unless the evidence is volunteered
by the witness or is not responsive to a question by the prosecuting
attorney. The court shall instruct the witness that he must answer
the questions asked and produce the items requested.
(b) A grant of use immunity does not
prohibit the use of evidence the witness has given in a prosecution
for perjury under IC 35-44-2-1.
(c) If a witness refuses to give the
evidence after he has been granted use immunity, the court may find
him in contempt.
As added by Acts 1981, P.L.298, SEC.6.
IC 35-37-5
Chapter 5. Uniform Act to Secure the
Attendance of Witnesses From Outside the State in Criminal
Proceedings
IC 35-37-5-1
Definitions
35-37-5-1 Sec. 1. As used in this chapter:
"State" includes any territory of the
United States and the District of Columbia.
"Subpoena" includes a summons in any state
where a summons is used in lieu of a subpoena.
"Witness" shall include a person whose
testimony is desired in any proceeding or investigation by a grand
jury or in a criminal action, prosecution, or proceeding.
As added by P.L.311-1983, SEC.2.
IC 35-37-5-2
Subpoena; issuance; service; proof of service;
fees; contempt of court
35-37-5-2 Sec. 2. (a) At the request of the
state or a defendant, subpoenas for attendance at a hearing or trial
shall be issued by the clerk of the court of the county in which the
hearing or trial is to be held. A subpoena may be served at any
place within the state. When permitted by the laws of the United
States, this or another state, or foreign country, the court upon
proper application and cause shown may authorize the service of a
subpoena outside the state in accordance with such law.
(b) Every subpoena shall:
(1) be issued by the clerk under the
seal of the court;
(2) state the name of the court and the
title of the action;
(3) command each person to whom it is
directed to attend and give testimony at a specified time and place;
and
(4) be signed by the clerk.
The clerk shall issue a subpoena, or a subpoena
for the production of documentary evidence, signed and sealed but
otherwise in blank, to a party requesting it or his attorney, who
shall fill it in before service.
(c) A subpoena may also command the person
to whom it is directed to produce the books, papers, documents, or
tangible things designated therein. The court, upon motion made at
or before the time specified in the subpoena for compliance, may:
(1) quash or modify the subpoena if it
is unreasonable and oppressive; or
(2) condition denial of the motion upon
the advancement by the person in whose behalf the subpoena is issued
of the reasonable costs of producing the books, papers, documents,
or tangible things.
(d) A subpoena may be served by any person.
Service of a subpoena upon a person shall be made in the same manner
as provided in the Indiana Rules of Trial Procedure.
(e) When a subpoena is served by the
sheriff or his deputy, his
return shall be proof of service. When served
by any other person, the service must be shown by affidavit. No fees
or costs for the service of a subpoena shall be collected or charged
as costs except when service is made by the sheriff or his deputy.
(f) Fees need not be first paid or tendered
in order to compel the attendance of witnesses in a criminal
proceeding.
(g) Failure by any person without adequate
excuse to obey a subpoena served upon him may be deemed a contempt
of:
(1) the court from which the subpoena
is issued; or
(2) the court of the county where the
witness was required to appear or act.
When duly subpoenaed, the attendance of all
witnesses may be enforced by attachment.
As added by P.L.311-1983, SEC.2.
IC 35-37-5-3
Subpoena; persons imprisoned or
institutionalized within this state
35-37-5-3 Sec. 3. (a) When the testimony of
a person who is imprisoned or institutionalized within this state is
necessary in any criminal proceeding, the subpoena shall be
delivered or mailed to the official in charge of the institution.
(b) The official in charge of the
institution shall bring the witness named in the subpoena before the
court at the time and place specified and hold him until he is
discharged by the court. When so discharged, the witness shall be
returned to the custody of such official and returned to the
institution. The official in charge of the institution may request
from the court issuing the subpoena such assistance as he deems
proper for the safe transportation of the witness.
(c) When such witness is in attendance upon
any court, he may be placed, for safe-keeping, in the jail of the
county or any other suitable place pursuant to an order of the
court. The county in which the proceeding is pending shall pay the
actual and necessary expense of producing, keeping, and returning
such witness.
As added by P.L.311-1983, SEC.2.
IC 35-37-5-4
Summoning witness in this state to testify in
another state
35-37-5-4 Sec. 4. (a) If a judge of a court
of record in any state which has made provision for the commanding
of persons within that state to attend and testify in this state
certifies under the seal of the court that:
(1) there is a criminal prosecution
pending in the court, or that a grand jury investigation has
commenced or is about to commence;
(2) a person being within this state is
a material witness in the prosecution or grand jury investigation;
and
(3) the person's presence will be
required for a specified number of days; upon presentation of the
certificate to a judge of a court of record with jurisdiction to try
felony cases in the county in which the person is located, the judge
shall fix a time and place for a hearing, and shall make an order
directing the witness to appear at a time and place certain for the
hearing.
(b) If at the hearing the judge determines
that:
(1) the witness is material and
necessary;
(2) it will not cause undue hardship to
the witness to be compelled to attend and testify in the prosecution
or a grand jury investigation in the other state; and
(3) the laws of the state in which the
prosecution is pending, or grand jury investigation has commenced or
is about to commence, will give to the person protection from
arrest, and the service of civil and criminal process;
the judge shall issue a subpoena, with a copy
of the certificate attached, directing the witness to attend and
testify in the court where the prosecution is pending, or where a
grand jury investigation has commenced or is about to commence at a
time and place specified in the subpoena. In any hearing the
certificate is prima facie evidence of all the facts stated in it.
(c) If the certificate recommends that the
witness be taken into immediate custody and delivered to an officer
of the requesting state to assure the attendance of the witness in
the requesting state, the judge may, in lieu of notification of the
hearing, direct that the witness be immediately brought before the
judge for the hearing. If the judge is satisfied of the desirability
of the custody and delivery, the judge may, in lieu of issuing a
subpoena, order that the witness be immediately taken into custody
and delivered to an officer of the requesting state. For this
determination, the certificate is prima facie proof of such
desirability.
(d) If a witness subpoenaed as provided in
this section is paid or tendered a sum for expenses and fails
without good cause to attend and testify as directed in the
subpoena, the witness shall be punished in the manner provided for
the punishment of any witness who disobeys a subpoena issued from a
court of record in this state.
(e) The amount of the payment for expenses
under subsection (d) of this section and section 4(b) of this
chapter is set out in IC 33-37-10-2.
As added by P.L.311-1983, SEC.2. Amended by
P.L.171-1984, SEC.78; P.L.192-1986, SEC.38; P.L.305-1987, SEC.33;
P.L.98-2004, SEC.148.
IC 35-37-5-5
Witness from another state summoned to testify
in this state
35-37-5-5 Sec. 5. (a) If a person in any
state that has made provision for commanding persons within its
borders to attend and testify in criminal prosecutions in this state
or grand jury investigations commenced or about to commence in this
state is a material witness in a prosecution pending in a court of
record in this state or in a grand jury investigation which has
commenced or is
about to commence in this state, a judge of the
court may issue a certificate under the seal of the court stating
these facts and specifying the number of days the witness will be
required. This certificate shall be presented to a judge of a court
of record in the county of the state in which the witness is found.
(b) If the witness is summoned to attend
and testify in this state, the witness shall be tendered a sum for
expenses equal to the amount provided under IC 33-37-10-2. The fees
shall be a proper charge upon the county in which the criminal
prosecution or grand jury investigation is pending.
(c) A witness who has appeared in
accordance with the provisions of the subpoena shall not be required
to remain within this state for a longer period of time than the
period mentioned in the certificate, unless otherwise ordered by the
court.
(d) If the witness fails without good cause
to attend and testify as directed in the subpoena, the witness shall
be punished in the manner provided for the punishment of any witness
who disobeys a subpoena issued from a court of record in this state.
As added by P.L.311-1983, SEC.2. Amended by
P.L.171-1984, SEC.79; P.L.192-1986, SEC.39; P.L.305-1987, SEC.34;
P.L.98-2004, SEC.149.
IC 35-37-5-6
Summoning prisoners in this state to testify in
another state; prisoner from another state summoned to testify in
this state
35-37-5-6 Sec. 6. (a) If a judge of a court
of record in any other state, which by its laws has made provision
for commanding a prisoner within that state to attend and testify in
this state, certifies under the seal of the court that:
(1) there is a criminal prosecution
pending in such court or that a grand jury investigation has
commenced;
(2) a person confined by the department
of correction (other than a person awaiting execution of a sentence
of death) is a material witness in such prosecution or
investigation; and
(3) his presence is required for a
specified number of days;
a judge of a court with jurisdiction to try
felony cases in the county where the person is confined, after
notice to the attorney general, shall fix a time and place for a
hearing and shall order the person having custody of the prisoner to
produce him at the hearing.
(b) If at such hearing the judge determines
that the prisoner is a material and necessary witness in the
requesting state, the judge shall issue an order directing that the
prisoner attend the court where the prosecution or investigation is
pending, upon such terms and conditions as the judge prescribes,
including:
(1) provision for the return of the
prisoner at the conclusion of his testimony;
(2) proper safeguards on his custody;
and
(3) proper financial reimbursement or
other payment by the demanding jurisdiction for all expenses
incurred in the production and return of the prisoner. (c) The
attorney general is authorized to enter into agreements with
authorities of the demanding jurisdiction to insure proper
compliance with the order of the court.
(d) If:
(1) a criminal action is pending in a
court of record of this state by reason of the filing of an
indictment or affidavit or by reason of the commencement of a grand
jury proceeding or investigation;
(2) there is reasonable cause to
believe that a person confined in a correctional institution or
prison of another state (other than a person awaiting execution of a
sentence of death or one confined as mentally ill) possesses
information material to such criminal action;
(3) the attendance of such person as a
witness in such action is desired by a party; and
(4) the state in which such person is
confined possesses a statute equivalent to this section;
a judge of the court in which such action is
pending may issue a certificate certifying all such facts and that
the attendance of such person as a witness in such court is required
for a specified number of days. Such a certificate may be issued
upon application of either the state or defendant demonstrating all
the facts specified in this section.
(e) Upon issuing such a certificate, the
court may deliver it to a court of such other state which, pursuant
to the laws thereof, is authorized to undertake legal action for the
delivery of such prisoners to this state as witnesses.
As added by P.L.311-1983, SEC.2.
IC 35-37-5-7
Federal prisoner summoned to testify in this
state
35-37-5-7 Sec. 7. When:
(1) a criminal action is pending in a
court of record of this state by reason of an indictment or
affidavit, or by reason of the commencement of a grand jury
proceeding or investigation;
(2) there is reasonable cause to
believe that a person confined in a federal prison or other federal
custody, either within or outside this state, possesses information
material to such criminal action; and
(3) the attendance of such person as a
witness in such action is desired by a party;
the court may issue a certificate, known as a
writ of habeas corpus ad testificandum, addressed to the attorney
general of the United States, certifying all such facts and
requesting the attorney general of the United States to cause the
attendance of such person as a witness in such court for a specified
number of days. Such a certificate may be issued upon application of
either the state or a defendant demonstrating all facts specified in
subdivision (1). Upon issuing such a certificate, the court may
deliver it, or cause or authorize it to be delivered, to the
attorney general of the United States or to his
representative authorized to entertain the
request.
As added by P.L.311-1983, SEC.2.
IC 35-37-5-8
Exemption from arrest or service of process
35-37-5-8 Sec. 8. If a person comes into
this state in obedience to a subpoena directing him to attend and
testify in a criminal prosecution in this or any other state, he
shall not while in this state pursuant to such subpoena be subject
to arrest or the service of process, civil, or criminal, in
connection with matters which arose before his entrance into this
state under subpoena.
As added by P.L.311-1983, SEC.2.
IC 35-37-5-9
Uniformity of construction
35-37-5-9 Sec. 9. This chapter shall be
construed so as to effectuate its general purpose which is to make
uniform the law of the states that enact it.
As added by P.L.311-1983, SEC.2
IC 35-37-6
Chapter 6. Privileged Communications and
Victim Counseling
IC 35-37-6-1
"Confidential communication" defined
35-37-6-1 Sec. 1. As used in this chapter,
"confidential communication" means any information:
(1) exchanged between a victim and a
victim counselor in private or in the presence of a third party who
is necessary to facilitate communication or further the counseling
process; and
(2) disclosed in the course of the
counselor's treatment of the victim for any emotional or
psychological condition resulting from a covered act.
As added by P.L.136-1987, SEC.5.
IC 35-37-6-2
"Covered act" defined
35-37-6-2 Sec. 2. As used in this chapter,
"covered act" means any of the following offenses or an act that, if
committed by a person less than eighteen (18) years of age, would be
any of the following offenses if committed by an adult:
(1) A sex crime under IC 35-42-4.
(2) A battery against:
(A) a child under IC
35-42-2-1(a)(2)(B);
(B) a disabled person under IC
35-42-2-1(a)(2)(C);
(C) an endangered adult under IC
35-42-2-1(a)(2)(E); or
(D) a spouse under IC 35-42-2-1.
(3) Neglect of a dependent under IC
35-46-1-4.
(4) Incest (IC 35-46-1-3).
As added by P.L.136-1987, SEC.5. Amended by
P.L.2-1997, SEC.74; P.L.2-1998, SEC.80; P.L.2-2005, SEC.122.
IC 35-37-6-3
"Victim" defined
35-37-6-3 Sec. 3. As used in this chapter,
"victim" means an individual:
(1) against whom a covered act is
committed; or
(2) other than an individual who is
accused of committing a covered act, who is the parent, stepparent,
child, stepchild, grandparent, grandchild, sibling, aunt, uncle,
niece, or nephew of the individual described in subdivision (1).
As added by P.L.136-1987, SEC.5.
IC 35-37-6-4
"Victim counseling" defined
35-37-6-4 Sec. 4. As used in this chapter,
"victim counseling" means diagnosis and treatment to alleviate the
adverse emotional or psychological impact of a covered act on the
victim.
As added by P.L.136-1987, SEC.5.
IC 35-37-6-5
"Victim counseling center" defined
35-37-6-5 Sec. 5. As used in this chapter,
"victim counseling center" means:
(1) a public agency;
(2) a unit of a public agency; or
(3) an organization that is exempt from
federal income taxation under Section 501 of the Internal Revenue
Code;
that is not affiliated with a law enforcement
agency, and has, as one (1) of its primary purposes, the treatment
of victims for emotional and psychological conditions that occur as
a result of covered acts.
As added by P.L.136-1987, SEC.5.
IC 35-37-6-6
"Victim counselor" defined
35-37-6-6 Sec. 6. As used in this chapter,
"victim counselor" means an individual who:
(1) is an employee or supervised
volunteer of a victim counseling center; and
(2) provides treatment to a victim for
an emotional or psychological condition incurred by the victim as a
result of a covered act.
The term does not include a law enforcement
officer or the employee or agent of a law enforcement officer.
As added by P.L.136-1987, SEC.5.
IC 35-37-6-7
Application of chapter
35-37-6-7 Sec. 7. This chapter does not
limit any other testimonial privilege available to a person.
As added by P.L.136-1987, SEC.5.
IC 35-37-6-8
Duty of victim counselor to report
35-37-6-8 Sec. 8. This chapter does not
relieve a victim counselor of any duty to report suspected abuse,
neglect, battery, or exploitation under IC 12-10-3, IC 31-33, or IC
35-46-1-13.
As added by P.L.136-1987, SEC.5. Amended by
P.L.3-1989, SEC.222; P.L.2-1992, SEC.875; P.L.1-1997, SEC.144.
IC 35-37-6-9
Confidential communications; compelling
testimony; records; temporary emergency shelters
35-37-6-9 Sec. 9. (a) The following persons
may not be compelled to give testimony or to produce records
concerning confidential communications in any judicial, legislative,
or administrative proceeding:
(1) A victim.
(2) A victim counselor, unless the
victim consents to the disclosure. (3) An unemancipated
child less than eighteen (18) years of age or an incapacitated
victim, unless a custodial parent, custodian, guardian, or guardian
ad litem who is not accused of a covered act consents to the
disclosure.
(b) A victim counselor or a victim may not
be compelled to provide testimony in any judicial, legislative, or
administrative proceeding that would identify the name, address,
location, or telephone number of any facility that provided
temporary emergency shelter to the victim of the offense or
transaction that is the subject of the proceeding unless the
facility is a party to the proceeding.
As added by P.L.136-1987, SEC.5.
IC 35-37-6-10
Waiver by victim of protections of chapter
35-37-6-10 Sec. 10. (a) A victim does not
waive the protections afforded by this chapter by testifying in
court about an offense. However, if the victim partially discloses
the contents of a confidential communication in the course of
testifying, either party may request the court to rule that justice
requires the protections of this chapter to be waived, to the extent
they apply to that portion of the communication.
(b) A waiver under this section applies
only to the extent necessary to require any witness to respond to
questions concerning the confidential communication that are
relevant to the facts and circumstances of the case.
As added by P.L.136-1987, SEC.5.
IC 35-37-6-11
Waiver by victim counselor of protections of
chapter; disclosure of confidential information
35-37-6-11 Sec. 11. A victim counselor may
not waive the protections afforded to a victim under this chapter.
However, if:
(1) a victim brings suit against a
victim counselor or victim counseling center in which the victim
counselor was employed or served as a volunteer at the time of the
counseling relationship; and
(2) the suit alleges malpractice during
the counseling relationship;
the victim counselor may testify or produce
records regarding confidential communications with the victim and is
not liable for doing so.
As added by P.L.136-1987, SEC.5.
IC 35-38
ARTICLE 38. PROCEEDINGS FOLLOWING
DISMISSAL, VERDICT, OR FINDING
IC 35-38-1
Chapter 1. Entry of Judgment and
Sentencing
IC 35-38-1-1
Judgment of conviction; pronouncement of
sentence
35-38-1-1 Sec. 1. (a) Except as provided in
section 1.5 of this chapter, after a verdict, finding, or plea of
guilty, if a new trial is not granted, the court shall enter a
judgment of conviction.
(b) When the court pronounces the sentence,
the court shall advise the person that the person is sentenced for
not less than the earliest release date and for not more than the
maximum possible release date.
As added by P.L.311-1983, SEC.3. Amended by
P.L.148-1995, SEC.3; P.L.98-2003, SEC.1
IC 35-38-2
Chapter 2. Probation
IC 35-38-2-1
Conditions of probation; advice on violation
specification in record; administrative costs; transfer of three
percent of probation user's fee; administrative fee; user's fee;
collection of administrative fee; disposition of money collected;
supplemental adult probation services fund; payment by credit card;
credit card service fee
35-38-2-1 Sec. 1. (a) Whenever it places a
person on probation, the court shall:
(1) specify in the record the
conditions of the probation; and
(2) advise the person that if the
person violates a condition of probation during the probationary
period, a petition to revoke probation may be filed before the
earlier of the following:
(A) One (1) year after the
termination of probation.
(B) Forty-five (45) days after the
state receives notice of the violation.
(b) In addition, if the person was
convicted of a felony and is placed on probation, the court shall
order the person to pay to the probation department the user's fee
prescribed under subsection (d). If the person was convicted of a
misdemeanor, the court may order the person to pay the user's fee
prescribed under subsection (e). The court may:
(1) modify the conditions (except a fee
payment may only be modified as provided in section 1.7(b) of this
chapter); or
(2) terminate the probation;
at any time. If the person commits an
additional crime, the court may revoke the probation.
(c) If a clerk of a court collects a
probation user's fee, the clerk:
(1) may keep not more than three
percent (3%) of the fee to defray the administrative costs of
collecting the fee and shall deposit any fee kept under this
subsection in the clerk's record perpetuation fund established under
IC 33-37-5-2; and
(2) if requested to do so by the county
auditor, city fiscal officer, or town fiscal officer under clause
(A), (B), or (C), transfer not more than three percent (3%) of the
fee to the:
(A) county auditor, who shall
deposit the money transferred under this subdivision into the county
general fund;
(B) city general fund when
requested by the city fiscal officer; or
(C) town general fund when
requested by the town fiscal officer.
(d) In addition to any other conditions of
probation, the court shall order each person convicted of a felony
to pay:
(1) not less than twenty-five dollars
($25) nor more than one hundred dollars ($100) as an initial
probation user's fee;
(2) a monthly probation user's fee of
not less than fifteen dollars ($15) nor more than thirty dollars
($30) for each month that the
person remains on probation;
(3) the costs of the laboratory test or
series of tests to detect and confirm the presence of the human
immunodeficiency virus (HIV) antigen or antibodies to the human
immunodeficiency virus (HIV) if such tests are required by the court
under section 2.3 of this chapter;
(4) an alcohol abuse deterrent fee and
a medical fee set by the court under IC 9-30-9-8, if the court has
referred the defendant to an alcohol abuse deterrent program; and
(5) an administrative fee of one
hundred dollars ($100);
to either the probation department or the
clerk.
(e) In addition to any other conditions of
probation, the court may order each person convicted of a
misdemeanor to pay:
(1) not more than a fifty dollar ($50)
initial probation user's fee;
(2) a monthly probation user's fee of
not less than ten dollars ($10) nor more than twenty dollars ($20)
for each month that the person remains on probation;
(3) the costs of the laboratory test or
series of tests to detect and confirm the presence of the human
immunodeficiency virus (HIV) antigen or antibodies to the human
immunodeficiency virus (HIV) if such tests are required by the court
under section 2.3 of this chapter; and
(4) an administrative fee of fifty
dollars ($50);
to either the probation department or the
clerk.
(f) The probation department or clerk shall
collect the administrative fees under subsections (d)(5) and (e)(4)
before collecting any other fee under subsection (d) or (e). All
money collected by the probation department or the clerk under this
section shall be transferred to the county treasurer, who shall
deposit the money into the county supplemental adult probation
services fund. The fiscal body of the county shall appropriate money
from the county supplemental adult probation services fund:
(1) to the county, superior, circuit,
or municipal court of the county that provides probation services to
adults to supplement adult probation services; and
(2) to supplement the salaries of
probation officers in accordance with the schedule adopted by the
county fiscal body under IC 36-2-16.5.
(g) The probation department or clerk shall
collect the administrative fee under subsection (e)(4) before
collecting any other fee under subsection (e). All money collected
by the probation department or the clerk of a city or town court
under this section shall be transferred to the fiscal officer of the
city or town for deposit into the local supplemental adult probation
services fund. The fiscal body of the city or town shall appropriate
money from the local supplemental adult probation services fund to
the city or town court of the city or town for the court's use in
providing probation services to adults or for the court's use for
other purposes as may be appropriated by the fiscal body. Money may
be appropriated under this subsection only to those city or town
courts that have an adult
probation services program. If a city or town
court does not have such a program, the money collected by the
probation department must be transferred and appropriated as
provided under subsection (f).
(h) Except as provided in subsection (j),
the county or local supplemental adult probation services fund may
be used only to supplement probation services and to supplement
salaries for probation officers. A supplemental probation services
fund may not be used to replace other funding of probation services.
Any money remaining in the fund at the end of the year does not
revert to any other fund but continues in the county or local
supplemental adult probation services fund.
(i) A person placed on probation for more
than one (1) crime:
(1) may be required to pay more than
one (1) initial probation user's fee; and
(2) may not be required to pay more
than one (1) monthly probation user's fee per month;
to the probation department or the clerk.
(j) This subsection applies to a city or
town located in a county having a population of more than one
hundred eighty-two thousand seven hundred ninety (182,790) but less
than two hundred thousand (200,000). Any money remaining in the
local supplemental adult probation services fund at the end of the
local fiscal year may be appropriated by the city or town fiscal
body to the city or town court for use by the court for purposes
determined by the fiscal body.
(k) In addition to other methods of payment
allowed by law, a probation department may accept payment of fees
required under this section and section 1.5 of this chapter by
credit card (as defined in IC 14-11-1-7). The liability for payment
is not discharged until the probation department receives payment or
credit from the institution responsible for making the payment or
credit.
(l) The probation department may contract
with a bank or credit card vendor for acceptance of bank or credit
cards. However, if there is a vendor transaction charge or discount
fee, whether billed to the probation department or charged directly
to the probation department's account, the probation department may
collect a credit card service fee from the person using the bank or
credit card. The fee collected under this subsection is a permitted
additional charge to the money the probation department is required
to collect under subsection (d) or (e).
(m) The probation department shall forward
the credit card service fees collected under subsection (l) to the
county treasurer or city or town fiscal officer in accordance with
subsection (f) or (g). These funds may be used without appropriation
to pay the transaction charge or discount fee charged by the bank or
credit card vendor.
As added by P.L.311-1983, SEC.3. Amended by
P.L.182-1984, SEC.1; P.L.296-1985, SEC.2; P.L.178-1986, SEC.2;
P.L.305-1987, SEC.36; P.L.123-1988, SEC.28; P.L.67-1990, SEC.10;
P.L.1-1991, SEC.196; P.L.18-1995, SEC.112; P.L.216-1996, SEC.14;
P.L.117-1996, SEC.4; P.L.117-1996, SEC.6;
P.L.170-2002, SEC.132; P.L.277-2003, SEC.11; P.L.98-2004, SEC.150;
P.L.1-2006, SEC.529
IC 35-38-2.5
Chapter 2.5. Home Detention
IC 35-38-2.5-1
Offenders to which chapter applies
35-38-2.5-1 Sec. 1. This chapter applies to adult offenders and to
juveniles who have committed a delinquent act that would be a crime
if committed by an adult.
As added by P.L.98-1988, SEC.6.
IC 35-38-2.6
Chapter 2.6. Direct Placement in Community
Corrections Program
IC 35-38-2.6-1
Application of chapter
35-38-2.6-1 Sec. 1. (a) Except as provided
in subsection (b), this chapter applies to the sentencing of a
person convicted of:
(1) a felony whenever any part of the
sentence may not be suspended under IC 35-50-2-2 or IC 35-50-2-2.1;
(2) a misdemeanor whenever any part of
the sentence may not be suspended; or
(3) an offense described in IC
35-50-2-2(b)(4)(R) (operating a vehicle while intoxicated with at
least two (2) prior unrelated convictions), if the person:
(A) is required to serve the
nonsuspendible part of the sentence in a community corrections:
(i) work release program; or
(ii) program that uses
electronic monitoring as a part of the person's supervision; and
(B) participates in a court
approved substance abuse program.
(b) This chapter does not apply to persons
convicted of any of the following:
(1) Sex crimes under IC 35-42-4 or IC
35-46-1-3.
(2) Except as provided in subsection
(a)(3), any of the felonies listed in IC 35-50-2-2(b)(4).
(3) An offense under IC 9-30-5-4.
(4) An offense under IC 9-30-5-5.
As added by P.L.240-1991(ss2), SEC.96. Amended
by P.L.144-1995, SEC.4; P.L.242-1999, SEC.9; P.L.17-2001, SEC.13;
P.L.213-2005, SEC.6; P.L.151-2006, SEC.15.
IC 35-38-2.6-2
"Community corrections program" defined
35-38-2.6-2 Sec. 2. As used in this
chapter, "community corrections program" means a program consisting
of residential and work release, electronic monitoring, day
treatment, or day reporting that is:
(1) operated under a community
corrections plan of a county and funded at least in part by the
state subsidy provided under IC 11-12-2; or
(2) operated by or under contract with
a court or county.
As added by P.L.240-1991(ss2), SEC.96. Amended
by P.L.135-1993, SEC.6; P.L.20-1994, SEC.3.
IC 35-38-2.6-3
Suspension of sentence and order for placement;
availability and terms of placement; DNA sample required
35-38-2.6-3 Sec. 3. (a) The court may, at
the time of sentencing,
suspend the sentence and order a person to be
placed in a community corrections program as an alternative to
commitment to the department of correction. The court may impose
reasonable terms on the placement. A court shall require a person:
(1) convicted of an offense described
in IC 10-13-6-10;
(2) who has not previously provided a
DNA sample in accordance with IC 10-13-6; and
(3) whose sentence does not involve a
commitment to the department of correction;
to provide a DNA sample as a term of placement.
(b) Placement in a community corrections
program under this chapter is subject to the availability of
residential beds or home detention units in a community corrections
program.
(c) A person placed under this chapter is
responsible for the person's own medical care while in the placement
program.
(d) Placement under this chapter is subject
to the community corrections program receiving a written presentence
report or memorandum from a county probation agency.
As added by P.L.240-1991(ss2), SEC.96. Amended
by P.L.135-1993, SEC.7; P.L.140-2006, SEC.29 and P.L.173-2006,
SEC.29.
IC 35-38-2.6-4
Time period for suspension of sentence
35-38-2.6-4 Sec. 4. If the court places a
person in a community corrections program under this chapter, the
court shall suspend the sentence for a fixed period to end not later
than the date the suspended sentence expires.
As added by P.L.240-1991(ss2), SEC.96.
IC 35-38-2.6-4.5
Home detention in community corrections program
35-38-2.6-4.5 Sec. 4.5. If a court places a
person on home detention as part of a community corrections program,
the placement must comply with IC 35-38-2.5, including the
supervision, monitoring, and unauthorized absence provisions of IC
35-38-2.5-10, IC 35-38-2.5-12, and IC 35-38-2.5-13.
As added by P.L.137-2001, SEC.10.
IC 35-38-2.6-5
Violation of terms of placement
35-38-2.6-5 Sec. 5. If a person who is
placed under this chapter violates the terms of the placement, the
court may, after a hearing, do any of the following:
(1) Change the terms of the placement.
(2) Continue the placement.
(3) Revoke the placement and commit the
person to the department of correction for the remainder of the
person's sentence.
As added by P.L.240-1991(ss2), SEC.96.
IC 35-38-2.6-6
Credit time
35-38-2.6-6 Sec. 6. (a) As used in this
subsection, "home" means the actual living area of the temporary or
permanent residence of a person. The term does not include a:
(1) hospital;
(2) health care facility;
(3) hospice;
(4) group home;
(5) maternity home;
(6) residential treatment facility;
(7) boarding house; or
(8) public correctional facility.
A person who is placed in a community
corrections program under this chapter is entitled to earn credit
time under IC 35-50-6 unless the person is placed in the person's
home.
(b) A person who is placed in a community
corrections program under this chapter may be deprived of earned
credit time as provided under rules adopted by the department of
correction under IC 4-22-2.
As added by P.L.240-1991(ss2), SEC.96. Amended
by P.L.135-1993, SEC.8; P.L.20-1994, SEC.4.
IC 35-38-2.6-7
Completion of program; probation
35-38-2.6-7 Sec. 7. When a person completes
a placement program under this chapter, the court shall place the
person on probation.
As added by P.L.240-1991(ss2), SEC.96.
IC 35-38-3
Chapter 3. Commitment to the Department of
Correction and Maximum, Medium, and Minimum Security Assignments
IC 35-38-3-1
Definitions
35-38-3-1 Sec. 1. As used in this chapter:
"Earliest possible release date" means the
date, computed as of the date of sentencing, on which a person would
be entitled to discharge or release on parole considering:
(1) the term of the sentence;
(2) the term of any other concurrent or
consecutive sentence that the person must serve;
(3) credit time that the person has
earned before sentencing; and
(4) the maximum amount of credit time
that the person would earn if he remained in a Class I credit time
assignment during his period of commitment.
"Rated capacity" means the number of
inmates that can be housed at the facility as determined by the most
recent jail inspection report.
"Receiving authority" means:
(1) the department of correction;
(2) a sheriff, if incarceration is
authorized in a county jail; or
(3) a facility or place designated by
the department of correction.
As added by P.L.311-1983, SEC.3.
IC 35-38-3-2
Certification of judgment of conviction and
sentence to receiving authority; contents of judgment; commencement
of term of imprisonment
35-38-3-2 Sec. 2. (a) When a convicted
person is sentenced to imprisonment, the court shall, without delay,
certify, under the seal of the court, copies of the judgment of
conviction and sentence to the receiving authority.
(b) The judgment must include:
(1) the crime for which the convicted
person is adjudged guilty and the classification of the criminal
offense;
(2) the period, if any, for which the
person is rendered incapable of holding any office of trust or
profit;
(3) the amount of the fines or costs
assessed, if any, whether or not the convicted person is indigent,
and the method by which the fines or costs are to be satisfied;
(4) the amount of credit, including
credit time earned, for time spent in confinement before sentencing;
and
(5) the amount to be credited toward
payment of the fines or costs for time spent in confinement before
sentencing.
(c) The judgment may specify the degree of
security recommended by the court.
(d) A term of imprisonment begins on the
date sentence is imposed, unless execution of the sentence is stayed
according to law. As added by P.L.311-1983, SEC.3.
IC 35-38-3-3
Persons convicted of misdemeanor; commitment;
local facilities
35-38-3-3 Sec. 3. (a) Except as provided by
subsection (b), a person convicted of a misdemeanor may not be
committed to the department of correction.
(b) Upon a request from the sheriff, the
commissioner may agree to accept custody of a misdemeanant:
(1) if placement in the county jail:
(A) places the inmate in danger of
serious bodily injury or death; or
(B) represents a substantial threat
to the safety of others;
(2) for other good cause shown; or
(3) if a person has more than five
hundred forty-seven (547) days remaining before the person's
earliest release date as a result of consecutive misdemeanor
sentences.
As added by P.L.311-1983, SEC.3. Amended by
P.L.242-1999, SEC.10.
IC 35-38-3-4
Duties of sheriff
35-38-3-4 Sec. 4. (a) The sheriff shall:
(1) transport the convicted person to a
receiving authority;
(2) deliver the person to the receiving
authority;
(3) deliver a copy of the judgment of
conviction and sentence; and
(4) take from the receiving authority a
receipt for the convicted person.
(b) The sheriff shall transport the
convicted person within five (5) days after the day of sentencing,
unless the court orders the sheriff to transport the person within
some other specified period.
As added by P.L.311-1983, SEC.3.
IC 35-38-3-5
Determination of degree of security assigned to
convicted person; change of degree; persons convicted of murder
35-38-3-5 Sec. 5. (a) The department, after
diagnosis and classification, shall:
(1) determine the degree of security
(maximum, medium, or minimum) to which a convicted person will be
assigned;
(2) for each offender convicted of a
Class D felony whose sentence for the Class D felony is
nonsuspendible under IC 35-50-2-2(b)(3) due to a prior unrelated
Class C or Class D felony, determine whether the offender is an
appropriate candidate for home detention under IC 35-38-2.5;
(3) for each offender convicted of a
Class D felony whose sentence for the Class D felony is
nonsuspendible under:
(A) IC 35-50-2-2.1(a)(1)(B);
(B) IC 35-50-2-2.1(a)(1)(C);
or (C) IC 35-50-2-2.1(a)(2);
determine whether the offender is an
appropriate candidate for home detention under IC 35-38-2.5;
(4) for each offender:
(A) committed to the department
because the offender has been convicted for the first time of a
Class C or a Class D felony; and
(B) whose sentence may be
suspended;
determine whether the offender is an
appropriate candidate for home detention under IC 35-38-2.5;
(5) notify the trial court and
prosecuting attorney if the degree of security assigned differs from
the court's recommendations; and
(6) petition the sentencing court under
IC 35-38-1-21 for review of the sentence of an offender who is not a
habitual offender sentenced under IC 35-50-2-8 or IC 35-50-2-10, and
who the department has determined under subdivision (2) or
subdivision (3), to be an appropriate candidate for home detention.
(b) The department may change the degree of
security to which the person is assigned. However, if the person is
changed to a lesser degree security during the first two (2) years
of the commitment, the department shall notify the trial court and
the prosecuting attorney not less than thirty (30) days before the
effective date of the changed security assignment.
As added by P.L.311-1983, SEC.3. Amended by
P.L.182-1988, SEC.1; P.L.98-1988, SEC.7; P.L.164-1993, SEC.9.
IC 35-38-3-6
Classification of penal facilities and programs
35-38-3-6 Sec. 6. (a) The department shall:
(1) classify all penal facilities and
programs to which convicted persons may be assigned for supervision
or custodial care according to:
(A) maximum, medium, or minimum
security function; and
(B) treatment program available;
and
(2) furnish the classifications to all
judges with general criminal jurisdiction.
(b) A maximum security assignment
constitutes an assignment of a convicted person to a penal facility
and correctional program that are designed to insure that the person
remains within a walled or fenced facility where entry and exit of
any person occurs only through department supervised gates and where
periodic inmate population accounting and supervision by the
department occurs each day.
(c) A medium security assignment
constitutes an assignment of a convicted person to a penal facility
and correctional program that are designed to insure that if the
person is permitted outside the supervised gates of a walled or
fenced facility, the department will provide continuous staff
supervision and the person will be accounted for throughout the
day. (d) A minimum security assignment constitutes an assignment
of a convicted person to a work release center or program, to
intermittent service of a sentence, or to a program requiring weekly
reporting to a designated official. Assignment to minimum security
need not involve a penal facility.
As added by P.L.311-1983, SEC.3
IC 35-50-2
Chapter 2. Death Sentence and Sentences
for Felonies and Habitual Offenders
IC 35-50-2-1
Definitions
35-50-2-1 Sec. 1. (a) As used in this
chapter, "Class D felony conviction" means a conviction of a Class D
felony in Indiana and a conviction, in any other jurisdiction at any
time, with respect to which the convicted person might have been
imprisoned for more than one (1) year. However, it does not include
a conviction with respect to which the person has been pardoned, or
a conviction of a Class A misdemeanor under section 7(b) of this
chapter.
(b) As used in this chapter, "felony
conviction" means a conviction, in any jurisdiction at any time,
with respect to which the convicted person might have been
imprisoned for more than one (1) year. However, it does not include
a conviction with respect to which the person has been pardoned, or
a conviction of a Class A misdemeanor under section 7(b) of this
chapter.
(c) As used in this chapter, "minimum
sentence" means:
(1) for murder, forty-five (45) years;
(2) for a Class A felony, twenty (20)
years;
(3) for a Class B felony, six (6)
years;
(4) for a Class C felony, two (2)
years; and
(5) for a Class D felony, one-half
(1/2) year.
As added by Acts 1976, P.L.148, SEC.8. Amended
by Acts 1977, P.L.340, SEC.114; P.L.334-1983, SEC.1; P.L.98-1988,
SEC.8; P.L.243-2001, SEC.2 and P.L.291-2001, SEC.225.
IC 35-50-3
Chapter 3. Sentences for Misdemeanors
IC 35-50-3-1
Suspension; probation
35-50-3-1 Sec. 1. (a) The court may suspend
any part of a sentence for a misdemeanor.
(b) Except as provided in subsection (c),
whenever the court suspends in whole or in part a sentence for a
Class A, Class B, or Class C misdemeanor, it may place the person on
probation under IC 35-38-2 for a fixed period of not more than one
(1) year, notwithstanding the maximum term of imprisonment for the
misdemeanor set forth in sections 2 through 4 of this chapter.
However, the combined term of imprisonment and probation for a
misdemeanor may not exceed one (1) year.
(c) Whenever the court suspends a sentence
for a misdemeanor, if the court finds that the use or abuse of
alcohol, drugs, or harmful substances is a contributing factor or a
material element of the offense, the court may place the person on
probation under IC 35-38-2 for a fixed period of not more than two
(2) years. However, a court may not place a person on probation for
a period of more than twelve (12) months in the absence of a report
that substantiates the need for a period of probation that is longer
than twelve (12) months for the purpose of completing a course of
substance abuse treatment. A probation user's fee that exceeds fifty
percent (50%) of the maximum probation user's fee allowed under IC
35-38-2-1 may not be required beyond the first twelve (12) months of
probation.
As added by Acts 1976, P.L.148, SEC.8. Amended
by Acts 1977, P.L.340, SEC.123; P.L.5-1988, SEC.210; P.L.135-1993,
SEC.9; P.L.90-2001, SEC.1; P.L.1-2002, SEC.152.
IC 35-50-3-2
Class A misdemeanor
35-50-3-2 Sec. 2. A person who commits a
Class A misdemeanor shall be imprisoned for a fixed term of not more
than one (1) year; in addition, he may be fined not more than five
thousand dollars ($5,000).
As added by Acts 1976, P.L.148, SEC.8. Amended
by Acts 1977, P.L.340, SEC.124.
IC 35-50-3-3
Class B misdemeanor
35-50-3-3 Sec. 3. A person who commits a
Class B misdemeanor shall be imprisoned for a fixed term of not more
than one hundred eighty (180) days; in addition, he may be fined not
more than one thousand dollars ($1,000).
As added by Acts 1976, P.L.148, SEC.8. Amended
by Acts 1977, P.L.340, SEC.125.
IC 35-50-3-4
Class C Misdemeanor
35-50-3-4 Sec. 4. A person who commits a
Class C misdemeanor shall be imprisoned for a fixed term of not more
than sixty (60) days; in addition, he may be fined not more than
five hundred dollars ($500).
As added by Acts 1978, P.L.2, SEC.3554.
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