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Criminal Defense

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Indiana Code Title 35 Criminal Law

Updated 10-10-06

Information Maintained by the Office of Code Revision Indiana Legislative Services Agency

 IC 35-32

ARTICLE 32. GENERAL PROCEDURAL

PROVISIONS

IC 35-32-1

Chapter 1. General Purpose

IC 35-32-1-1

Construction of title

35-32-1-1 Sec. 1. This title shall be construed in accordance with

its general purposes, to:

(1) secure simplicity in procedure;

(2) insure fairness of administration including the elimination of unjustifiable delay;

(3) insure the effective apprehension and trial of persons accused of offenses;

(4) provide for the just determination of every criminal proceeding by a fair and impartial trial and adequate review;

and

(5) preserve the public welfare and secure the fundamental rights of individuals.

As added by Acts 1981, P.L.298, SEC.1.

IC 35-32-2

Chapter 2. Venue

IC 35-32-2-1

Place of trial

35-32-2-1 Sec. 1. (a) Criminal actions shall be tried in the county where the offense was committed, except as otherwise provided by law.

(b) If a person committing an offense upon the person of another is located in one (1) county and the person's victim is located in another county at the time of the commission of the offense, the trial may be in either of the counties.

(c) If the offense involves killing or causing the death of another human being, the trial may be in the county in which the:

(1) cause of death is inflicted;

(2) death occurs; or

(3) victim's body is found.

(d) If an offense is committed in Indiana and it cannot readily be determined in which county the offense was committed, trial may be in any county in which an act was committed in furtherance of the offense.

(e) If an offense is commenced outside Indiana and completed within Indiana, the offender may be tried in any county where any act in furtherance of the offense occurred.

(f) If an offense commenced inside Indiana is completed outside Indiana, the offender shall be tried in any county where an act in furtherance of the offense occurred.

(g) If an offense is committed on the portions of the Ohio or Wabash Rivers where they form a part of the boundaries of this state, trial may be in the county that is adjacent to the river and whose boundaries, if projected across the river, would include the place where the offense was committed.

(h) If an offense is committed at a place which is on or near a common boundary which is shared by two (2) or more counties and it cannot be readily determined where the offense was committed, then the trial may be in any county sharing the common boundary.

(i) If an offense is committed on a public highway (as defined in IC 9-25-2-4) that runs on and along a common boundary shared by two (2) or more counties, the trial may be held in any county sharing the common boundary.

(j) If an offense is committed by use of the Internet or another computer network (as defined in IC 35-43-2-3), the trial may be held in any county:

(1) from which or to which access to the Internet or other computer network was made; or

(2) in which any computer, computer data, computer software, or computer network that was used to access the Internet or other computer network is located.

(k) If an offense:

(1) is committed by use of:

IC 35-32-3

Chapter 3. Repealed

(Repealed by P.L.23-1994, SEC.18.)

IC 35-33

ARTICLE 33. PRELIMINARY PROCEEDINGS

IC 35-33-1

Chapter 1. Arrest

IC 35-33-1-1

Law enforcement officer; federal enforcement officer

35-33-1-1 Sec. 1. (a) A law enforcement officer may arrest a

person when the officer has:

(1) a warrant commanding that the person be arrested;

(2) probable cause to believe the person has committed or attempted to commit, or is committing or attempting to commit, a felony;

(3) probable cause to believe the person has violated the provisions of IC 9-26-1-1(1), IC 9-26-1-1(2), IC 9-26-1-2(1), IC 9-26-1-2(2), IC 9-26-1-3, IC 9-26-1-4, or IC 9-30-5;

(4) probable cause to believe the person is committing or attempting to commit a misdemeanor in the officer's presence;

(5) probable cause to believe the person has committed a:

(A) battery resulting in bodily injury under IC 35-42-2-1; or

(B) domestic battery under IC 35-42-2-1.3.

The officer may use an affidavit executed by an individual alleged to have direct knowledge of the incident alleging the elements of the offense of battery to establish probable cause;

(6) probable cause to believe that the person violated IC 35-46-1-15.1 (invasion of privacy);

(7) probable cause to believe that the person violated IC 35-47-2-1 (carrying a handgun without a license) or IC 35-47-2-22 (counterfeit handgun license);

(8) probable cause to believe that the person is violating or has violated an order issued under IC 35-50-7;

(9) probable cause to believe that the person is violating or has violated IC 35-47-6-1.1 (undisclosed transport of a dangerous

device); or

(10) probable cause to believe that the person is:

(A) violating or has violated IC 35-45-2-5 (interference with the reporting of a crime); and

(B) interfering with or preventing the reporting of a crime involving domestic or family violence (as defined in IC 34-6-2-34.5).

(b) A person who:

(1) is employed full time as a federal enforcement officer;

(2) is empowered to effect an arrest with or without warrant for a violation of the United States Code; and

(3) is authorized to carry firearms in the performance of the person's duties; may act as an officer for the arrest of offenders against the laws of this state where the person reasonably believes that a felony has been

IC 35-33-3

Chapter 3. Uniform Act on Fresh Pursuit

IC 35-33-3-1

Officer of another state in fresh pursuit; authority to arrest in this state

35-33-3-1 Sec. 1. Any member of a duly organized state, county or municipal peace unit of another state who enters this state in fresh pursuit, and continues within this state in such fresh pursuit of a person in order to arrest him on ground that he is believed to have committed a felony in the other state, shall have the same authority to arrest and hold such person in custody as has any law enforcement officer of this state to arrest and hold in custody a person on the ground that he is believed to have committed a felony in this state.

As added by Acts 1981, P.L.298, SEC.2.

IC 35-33-3-2

Hearing before judge; commitment for extradition or discharge

35-33-3-2 Sec. 2. If an arrest is made in this state by an officer of another state in accordance with the provisions of section 1 of this chapter, he shall, without unnecessary delay, take the person arrested before a judge of the county in which the arrest was made. The judge shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the judge determines that the arrest was lawful, he shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the governor of this state. If the judge determines that the arrest was unlawful, he shall discharge the person arrested.

As added by Acts 1981, P.L.298, SEC.2.

IC 35-33-3-3

Lawfulness of arrest

35-33-3-3 Sec. 3. Section 1 of this chapter shall not be construed so as to make unlawful any arrest in this state which otherwise would be lawful.

As added by Acts 1981, P.L.298, SEC.2.

IC 35-33-3-4

"State" defined

35-33-3-4 Sec. 4. For the purpose of this chapter, the word "state" shall include the District of Columbia.

As added by Acts 1981, P.L.298, SEC.2.

IC 35-33-3-5

"Fresh pursuit" defined

35-33-3-5 Sec. 5. The term "fresh pursuit" as used in this chapter shall include fresh pursuit as defined by the common law, and also the pursuit of a person who has committed a felony or who reasonably is suspected of having committed a felony. It shall also include the pursuit of a person suspected of having committed a

IC 35-33-4

Chapter 4. Summons and Promise to Appear in Lieu of Arrest

Warrant

IC 35-33-4-1

Summons in lieu of arrest warrant; contents; service; return; failure to appear; forms

35-33-4-1 Sec. 1. (a) When an indictment or information is filed against a person charging him with a misdemeanor, the court may, in lieu of issuing an arrest warrant under IC 35-33-2, issue a summons.

The summons must set forth substantially the nature of the offense, and command the accused person to appear before the court at a stated time and place. However, the date set by the court must be at least seven (7) days after the issuance of the summons. The summons may be served in the same manner as the summons in a civil action.

(b) If the person summoned fails, without good cause, to appear as commanded by the summons and the court has determined that there is probable cause to believe that a crime (other than failure to appear) has been committed, the court shall issue a warrant of arrest.

(c) If after issuing a summons the court:

(1) is satisfied that the person will not appear as commanded by the summons; and

(2) has determined that there is probable cause that a crime (other than failure to appear) has been committed; it may at once issue a warrant of arrest.

(d) The summons may be in substantially the following form:

STATE OF INDIANA ) IN THE _______ COURT

)

vs. ) OF __________ COUNTY

)

__________________ )

Defendant ) CAUSE NO. _________

SUMMONS

THE STATE OF INDIANA TO

THE ABOVE NAMED DEFENDANT:

YOU ARE HEREBY SUMMONED, to appear before the above

designated Court at ______, ______, ______ at _____ ___.m. on

(day) ______, _____, 20___, with respect to an (information or

indictment) for ____________.

If you do not so appear, an application may be made for the

Issuance of a Warrant for your arrest.

ISSUED: __________ ___,

20___

in

(City or County) _________, ______

BY THE CLERK OF SAID COURT:

_______________________________

CLERK

(e) When any law enforcement officer in the state serves a

summons on a person, he shall file a return of service with the court

IC 35-33-5

Chapter 5. Search and Seizure

IC 35-33-5-1

Issuance by court; probable cause; oath and affirmation;

"place" defined; objects of search

35-33-5-1 Sec. 1. (a) A court may issue warrants only upon probable cause, supported by oath or affirmation, to search any place for any of the following:

(1) Property which is obtained unlawfully.

(2) Property, the possession of which is unlawful.

(3) Property used or possessed with intent to be used as the means of committing an offense or concealed to prevent an offense from being discovered.

(4) Property constituting evidence of an offense or tending to show that a particular person committed an offense.

(5) Any person.

(6) Evidence necessary to enforce statutes enacted to prevent cruelty to or neglect of children.

(7) A firearm possessed by a person who is dangerous (as defined in IC 35-47-14-1).

(b) As used in this section, "place" includes any location where property might be secreted or hidden, including buildings, persons, or vehicles.

As added by Acts 1981, P.L.298, SEC.2. Amended by Acts 1982, P.L.204, SEC.10; P.L.187-2005, SEC.1; P.L.1-2006, SEC.526.

IC 35-33-5-2

Affidavit; descriptions; information to establish credibility of hearsay; form

35-33-5-2 Sec. 2. (a) Except as provided in section 8 of this chapter, no warrant for search or arrest shall be issued until there is filed with the judge an affidavit:

(1) particularly describing:

(A) the house or place to be searched and the things to be searched for; or

(B) particularly describing the person to be arrested;

(2) alleging substantially the offense in relation thereto and that the affiant believes and has good cause to believe that:

(A) the things as are to be searched for are there concealed;

or

(B) the person to be arrested committed the offense; and

(3) setting forth the facts then in knowledge of the affiant or information based on hearsay, constituting the probable cause.

(b) When based on hearsay, the affidavit must either:

(1) contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished; or

(2) contain information that establishes that the totality of the

IC 35-33-6

Chapter 6. Detention of Shoplifters by Owner or Agent

IC 35-33-6-1

Definitions

35-33-6-1 Sec. 1. As used in this chapter:

"Adult employee" means an employee who is eighteen (18) years old or older.

"Agent" means an operator, a manager, an adult employee, or a security agent employed by a store.

"Motion picture exhibition facility" has the meaning set forth in IC 35-46-8-3.

"Security agent" means a person who has been employed by a store to prevent the loss of property due to theft.

"Store" means a place of business where property or service with respect to property is displayed, rented, sold, or offered for sale.

As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.94-2005,

SEC.1.

IC 35-33-6-2

Probable cause; detention; procedure

35-33-6-2 Sec. 2. (a) An owner or agent of a store who has probable cause to believe that a theft has occurred or is occurring on or about the store and who has probable cause to believe that a specific person has committed or is committing the theft may:

(1) detain the person and request the person to identify himself;

(2) verify the identification;

(3) determine whether the person has in his possession unpurchased merchandise taken from the store;

(4) inform the appropriate law enforcement officers; and

(5) inform the parents or others interested in the person's welfare, that the person has been detained.

(b) The detention must:

(1) be reasonable and last only for a reasonable time; and

(2) not extend beyond the arrival of a law enforcement officer

or two (2) hours, whichever first occurs.

As added by Acts 1981, P.L.298, SEC.2. Amended by Acts 1982,

P.L.204, SEC.11.

IC 35-33-6-2.5

Detention of person making unlawful recording

35-33-6-2.5 Sec. 2.5. (a) An owner or agent of a motion picture exhibition facility who has probable cause to believe that an unlawful recording under IC 35-46-8 has occurred or is occurring in the motion picture exhibition facility and who has probable cause to believe that a specific person has committed or is committing the unlawful recording may:

(1) detain the person and request the person to provide identification;

(2) verify the identification;

IC 35-33-7

Chapter 7. Probable Cause; Initial Hearing

IC 35-33-7-1

Arrest without warrant; initial hearing; venue

35-33-7-1 Sec. 1. (a) A person arrested without a warrant for a

crime shall be taken promptly before a judicial officer:

(1) in the county in which the arrest is made; or

(2) of any county believed to have venue over the offense

committed; for an initial hearing in court.

(b) Except as provided in subsection (c), if the person arrested

makes bail before the person's initial hearing before a judicial officer,

the initial hearing shall occur at any time within twenty (20) calendar

days after the person's arrest.

(c) If a person arrested under IC 9-30-5 makes bail before the

person's initial hearing before a judicial officer, the initial hearing

must occur within ten (10) calendar days after the person's arrest.

As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.126-1989,

SEC.27; P.L.2-1991, SEC.103.

IC 35-33-7-2

Probable cause; affidavit or oral presentation under oath;

record; determination; detention or release

35-33-7-2 Sec. 2. (a) At or before the initial hearing of a person

arrested without a warrant for a crime, the facts upon which the

arrest was made shall be submitted to the judicial officer, ex parte,

in a probable cause affidavit. In lieu of the affidavit or in addition to

it, the facts may be submitted orally under oath to the judicial officer.

If facts upon which the arrest was made are submitted orally, the

proceeding shall be recorded by a court reporter, and, upon request

of any party in the case or upon order of the court, the record of the

proceeding shall be transcribed.

(b) If the judicial officer determines that there is probable cause

to believe that any crime was committed and that the arrested person

committed it, the judicial officer shall order that the arrested person

be held to answer in the proper court. If the facts submitted do not

establish probable cause or if the prosecuting attorney informs the

judicial officer on the record that no charge will be filed against the

arrested person, the judicial officer shall order that the arrested

person be released immediately.

As added by Acts 1981, P.L.298, SEC.2. Amended by Acts 1982,

P.L.204, SEC.12.

IC 35-33-7-3

Filing of indictment or information; recess or continuation of

initial hearing; informing accused of rights

35-33-7-3 Sec. 3. (a) When a person is arrested for a crime before

a formal charge has been filed, an information or indictment shall be

filed or be prepared to be filed at or before the initial hearing, unless

the prosecuting attorney has informed the court that there will be no

IC 35-33-8

Chapter 8. Bail and Bail Procedure

IC 35-33-8-1

"Bail bond" defined

35-33-8-1 Sec. 1. As used in this chapter, "bail bond" means a

bond executed by a person who has been arrested for the commission

of an offense, for the purpose of ensuring:

(1) the person's appearance at the appropriate legal proceeding;

(2) another person's physical safety; or

(3) the safety of the community.

As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.221-1996,

SEC.1.

IC 35-33-8-1.5

"Publicly paid costs of representation" defined

35-33-8-1.5 Sec. 1.5. As used in this chapter, "publicly paid costs

of representation" means the portion of all attorney's fees, expenses,

or wages incurred by the county that are:

(1) directly attributable to the defendant's defense; and

(2) not overhead expenditures made in connection with the

maintenance or operation of a governmental agency.

As added by P.L.167-1987, SEC.8.

IC 35-33-8-2

Murder; other offenses

35-33-8-2 Sec. 2. (a) Murder is not bailable when the proof is

evident or the presumption strong. In all other cases, offenses are

bailable.

(b) A person charged with murder has the burden of proof that he

should be admitted to bail.

As added by Acts 1981, P.L.298, SEC.2.

IC 35-33-8-3 Repealed

(Repealed by P.L.1-1990, SEC.341.)

IC 35-33-8-3.1 Repealed

(Repealed by P.L.107-1998, SEC.6.)

IC 35-33-8-3.2 Version a

Conditions to assure appearance; remittance of deposit; collection

of fees

Note: This version of section effective until 7-1-2006. See also

following versions of this section amended by P.L.97-2006, SEC.1,

effective 7-1-2006, and amended by P.L.173-2006, SEC.42, effective

7-1-2006.

35-33-8-3.2 Sec. 3.2. (a) A court may admit a defendant to bail and

impose any of the following conditions to assure the defendant's

appearance at any stage of the legal proceedings, or, upon a showing

of clear and convincing evidence that the defendant poses a risk of

 

IC 35-33-8.5

Chapter 8.5. Bail and Recognizance

IC 35-33-8.5-1

Sheriff; approval of bail

35-33-8.5-1 Sec. 1. When any person is committed for want of

bail, and the amount of bail is specified in the warrant of

commitment, the sheriff may take the recognizance and approve the

bail.

As added by P.L.5-1988, SEC.180.

IC 35-33-8.5-2

Recognizances; recording

35-33-8.5-2 Sec. 2. Every recognizance taken by any peace officer

must be delivered forthwith to the clerk of the court to which the

defendant is recognized. The clerk must thereupon record the

recognizance, and, from the time of filing, it shall have the same

effect as if taken in open court.

As added by P.L.5-1988, SEC.180.

IC 35-33-8.5-3

Recognizances; sureties; affidavit of qualifications

35-33-8.5-3 Sec. 3. A court or officer required to take or accept

any bail or recognizance or to approve the sureties offered on any

bond or recognizance in any case of a criminal nature, may require

any person offered as surety thereon to make affidavit of the person's

qualifications or to be examined orally under oath touching the same,

and such court or officer may take such affidavit or administer such

oath.

As added by P.L.5-1988, SEC.180.

IC 35-33-8.5-4

Sureties; qualifications; judgments and decrees; appeals

35-33-8.5-4 Sec. 4. (a) One (1) surety on every such recognizance

must be a resident freeholder of the county in which the prosecution

is pending, and the surety or sureties must be worth at least double

the sum to be secured and must have property in this state liable to

execution equal to the sum to be secured, and when two (2) or more

sureties are offered to the same recognizance, they must have in the

aggregate the qualifications prescribed in this section. Whenever by

the laws of this state a surety company is authorized to become

surety on recognizance bonds, such surety company may be accepted

as sufficient surety on any such bond.

(b) The recognizance shall be in form substantially as provided in

IC 27-10-2-10, conditioned for judgment on ten (10) days notice to

the surety. No pleadings shall be necessary and no change of judge

or change of venue shall be granted. The obligor may except to the

ruling of the court and appeal to the court of appeals as in civil cases

without moving for a new trial.

As added by P.L.5-1988, SEC.180.

 

IC 35-33-9

Chapter 9. Bail Upon Appeal

IC 35-33-9-1

Discretion of court; excepted felonies

35-33-9-1 Sec. 1. A person convicted of an offense who has

appealed or desires to appeal the conviction may file a petition to be

admitted to bail pending appeal. The person may be admitted to bail

pending appeal at the discretion of the court in which the case was

tried, but he may not be admitted to it if he has been convicted of a

Class A felony or a felony for which the court may not suspend the

sentence under IC 35-50-2-2.

As added by Acts 1981, P.L.298, SEC.2.

IC 35-33-9-2

Petition; filing

35-33-9-2 Sec. 2. When a person has been sentenced to a term of

imprisonment and has filed an appeal, that person may file a petition

for bail pending appeal unless he is barred from admission to bail

pending appeal by section 1 of this chapter. The petition must be

filed in the court in which the case was tried, and a copy shall be sent

to the prosecuting attorney of the circuit where the judgment was

rendered.

As added by Acts 1981, P.L.298, SEC.2.

IC 35-33-9-3

Bond; conditions of undertaking

35-33-9-3 Sec. 3. (a) The sureties on all appeal bonds must

possess the qualifications that are required of bail in criminal cases,

except the undertaking must also include the defendant's promise to:

(1) faithfully prosecute his appeal;

(2) abide by the order and judgment of the court to which the

cause is appealed;

(3) surrender himself in execution of the judgment if the appeal

be affirmed or dismissed; and

(4) surrender himself to the trial court if required by the

judgment upon reversal.

(b) If undertaking is given before an appeal has been perfected,

the undertaking must include a promise that an appeal will be

perfected by the defendant.

As added by Acts 1981, P.L.298, SEC.2.

IC 35-33-9-4

Amount; order; surrender by surety and recommitment; failure

to comply

35-33-9-4 Sec. 4. (a) The court in which a petition to be admitted

to bail is filed shall:

(1) fix bail in a reasonable amount, considering the nature of the

offense and the penalty adjudged, as will insure the compliance

by the defendant with the terms of the bond; and

IC 35-33-10

Chapter 10. Securing Attendance of Defendants and Uniform

Extradition Act

IC 35-33-10-1

Defendant in custody; order to appear; defendant at liberty;

notice to appear; arrest upon failure to appear

35-33-10-1 Sec. 1. (a) When a criminal action is pending against

a defendant and the defendant is in the custody of any law

enforcement officer, the court may order the law enforcement officer

to produce the defendant before the court for prosecution. If the

defendant is at liberty within the state as a result of an order releasing

him on his own recognizance or on bail, the court may cause the

defendant or his attorney to be notified to appear at a designated

time. Upon failure to appear after such notification, the court may

issue a warrant for the defendant's immediate arrest.

(b) The method selected to secure the attendance of the defendant

shall not be a ground for objection at any stage of the criminal

proceeding if the method is allowed by this article.

As added by Acts 1981, P.L.298, SEC.2.

IC 35-33-10-2

Defendant confined under judgment or court order or awaiting

trial for another offense; order or warrant of detainer

35-33-10-2 Sec. 2. (a) When an indictment or information is

pending against a defendant confined in this state under a judgment

or court order, the court with jurisdiction over the pending criminal

action shall, after application by the prosecuting attorney, order that

the defendant be produced before the court for prosecution. The

defendant shall not be entitled to release pending trial on the

indictment or information. The court may order that the defendant be

surrendered to the sheriff of the county in which the court issuing the

order is located. The court may order the sheriff to convey the

defendant from the institution and commit the defendant to the jail

or to another place of custody specified in the order. If the

proceeding is delayed, the court may order the defendant returned

temporarily to the institution until the presence of the defendant

before the court is required.

(b) When an indictment or information is pending against a

defendant:

(1) confined in an institution within this state pending trial for

another offense; or

(2) who has been released by order of another court pending

trial before that court for another offense;

the court shall, upon motion of the prosecuting attorney, issue a

warrant of detainer to the court before which the other prosecution

is pending. The court to which the order of detainer is issued, shall,

upon termination of the proceedings before the court, deliver custody

of the defendant to the sheriff of the county in which the court

issuing the warrant is situated. Upon delivery, the court shall return

IC 35-33-11

Chapter 11. Emergency Transfer of Certain Jail Inmates

IC 35-33-11-1

Inmate in county jail in imminent danger of serious bodily injury

or death or represents substantial threat to safety of others

35-33-11-1 Sec. 1. Upon motion by the:

(1) sheriff;

(2) prosecuting attorney;

(3) defendant or his counsel;

(4) attorney general; or

(5) court;

alleging that an inmate in a county jail awaiting trial is in danger of

serious bodily injury or death or represents a substantial threat to the

safety of others, the court shall determine whether the inmate is in

imminent danger of serious bodily injury or death, or represents a

substantial threat to the safety of others. If the court finds that the

inmate is in danger of serious bodily injury or death or represents a

substantial threat to the safety of others, it shall order the sheriff to

transfer the inmate to another county jail or to a facility of the

department of correction designated by the commissioner of the

department as suitable for the confinement of that prisoner and

provided that space is available. For the purpose of this chapter, an

inmate is not considered in danger of serious bodily injury or death

due to an illness or other medical condition.

As added by Acts 1981, P.L.298, SEC.2.

IC 35-33-11-2

Posttransfer hearing

35-33-11-2 Sec. 2. The inmate or receiving authority is entitled to

a posttransfer hearing upon request. The inmate may refuse a transfer

if the only issue is his personal safety.

As added by Acts 1981, P.L.298, SEC.2.

IC 35-33-11-3

Overcrowding or inadequacy of local penal facility

35-33-11-3 Sec. 3. Upon petition by the sheriff alleging that:

(1) the local penal facility is overcrowded or otherwise

physically inadequate to house inmates; and

(2) another sheriff or the commissioner of the department of

correction has agreed to accept custody of inmates from the

sheriff;

the court may order inmates transferred to the custody of the person

who has agreed to accept custody. Whenever a transfer order is

necessary under this section, only inmates serving a sentence after

conviction for a crime may be transferred, unless the overcrowding

or inadequacy of the facility also requires transfer of inmates

awaiting trial or sentencing.

As added by Acts 1981, P.L.298, SEC.2.

IC 35-33-12

Chapter 12. Repealed

(Repealed by P.L.139-1999, SEC.2.)

IC 35-33-13

Chapter 13. Repealed

(Repealed by P.L.305-1987, SEC.38.)

IC 35-33-14

Chapter 14. County Extradition Fund

IC 35-33-14-1

Establishment

35-33-14-1 Sec. 1. There is established in each county a county

extradition fund.

As added by P.L.355-1989(ss), SEC.15.

IC 35-33-14-2

Purpose

35-33-14-2 Sec. 2. The county extradition fund is established for

the purpose of providing funding to offset the costs of extraditing

criminal defendants. Money in the fund may not be used for any

other purpose.

As added by P.L.355-1989(ss), SEC.15.

IC 35-33-14-3

Administration

35-33-14-3 Sec. 3. The county auditor shall administer the fund.

As added by P.L.355-1989(ss), SEC.15.

IC 35-33-14-4

Reversion of fund money

35-33-14-4 Sec. 4. Money in the fund at the end of a particular

calendar year does not revert to any other fund, but remains in the

county extradition fund.

As added by P.L.355-1989(ss), SEC.15.

IC 35-33-14-5

Composition of fund

35-33-14-5 Sec. 5. The fund consists of the portion of late

surrender fees deposited in the fund under IC 27-10-2-12(i).

As added by P.L.355-1989(ss), SEC.15.

IC 35-33.5

ARTICLE 33.5. INTERCEPTION OF TELEPHONIC

OR TELEGRAPHIC COMMUNICATIONS

IC 35-33.5-1

Chapter 1. Applicability and Definitions

IC 35-33.5-1-1

Inapplicable to ordinary course of business

35-33.5-1-1 Sec. 1. This article does not apply to the ordinary

course of business pertaining to the operation of a telephone or

telegraph corporation and the use of the services and facilities

furnished by that corporation in accordance with the corporation's

tariffs.

As added by P.L.161-1990, SEC.3.

IC 35-33.5-1-2

Applicability of definitions

35-33.5-1-2 Sec. 2. The definitions in this chapter apply

throughout this article.

As added by P.L.161-1990, SEC.3.

IC 35-33.5-1-3

"Designated offense" defined

35-33.5-1-3 Sec. 3. "Designated offense" means the following:

(1) A Class A, Class B, or Class C felony that is a controlled

substance offense (IC 35-48-4).

(2) Murder (IC 35-42-1-1), while committing or attempting to

commit a controlled substance offense under IC 35-48-4-1

through IC 35-48-4-4.

As added by P.L.161-1990, SEC.3.

IC 35-33.5-1-4

"Extension" defined

35-33.5-1-4 Sec. 4. "Extension" means an extension of the

duration for which a warrant remains effective under this article.

As added by P.L.161-1990, SEC.3.

IC 35-33.5-1-5

"Interception" defined

35-33.5-1-5 Sec. 5. "Interception" means the intentional:

(1) recording of; or

(2) acquisition of the contents of;

a telephonic or telegraphic communication by a person other than a

sender or receiver of that communication, without the consent of the

sender or receiver, by means of any instrument, device, or equipment

under this article. This term includes the intentional recording of

communication through the use of a computer or a FAX (facsimile

transmission) machine.

IC 35-33.5-2

Chapter 2. Applications, Procedures, and Reports

IC 35-33.5-2-1

Application for warrant by prosecuting attorney; coapplicant;

interception equipment under control of state police

35-33.5-2-1 Sec. 1. (a) A prosecuting attorney may submit an

application for a warrant or an extension to a circuit or superior court

where:

(1) the county that the prosecuting attorney represents is

located; and

(2) the communication subject to the warrant is anticipated to

be sent or received.

The prosecuting attorney may not delegate the responsibility of

applying for a warrant or an extension to a deputy prosecuting

attorney.

(b) One (1) of the following persons must serve as a coapplicant

for a warrant or an extension under subsection (a):

(1) The superintendent of the state police department.

(2) The police chief of a consolidated city where the

communication subject to the warrant is anticipated to be sent

or received.

(3) The sheriff of the county containing a consolidated city

where the communication subject to the warrant is anticipated

to be sent or received.

(c) Only the state police department may install, operate, or

monitor any equipment, device, or instrument for the purpose of

intercepting a telephonic or telegraphic communication under this

chapter.

As added by P.L.161-1990, SEC.3.

IC 35-33.5-2-2

Application or extension in writing and upon oath of

affirmation; information required

35-33.5-2-2 Sec. 2. (a) An application for a warrant or extension

must be made in writing and upon oath or affirmation. Each

application must also include the following:

(1) The identity of the persons submitting the application.

(2) An affidavit setting forth the facts relied upon by an

applicant to show why a warrant should be issued or an

extension granted, including the following:

(A) Facts establishing probable cause for the belief that a

designated offense allegedly has been, is being, or may be

committed.

(B) A description of the nature and location of the facility or

place from which the communication is to be intercepted.

(C) The identity, if known, of the person allegedly

committing the designated offense whose communication is

to be intercepted.

(D) A description of the type of communication to be

IC 35-33.5-3

Chapter 3. Duties of the Court

IC 35-33.5-3-1

Authorization of warrant or extension; determinations by court;

examinations under oath; in camera inquiries

35-33.5-3-1 Sec. 1. (a) A court may enter an order authorizing a

warrant or an extension if, based on the facts submitted by an

applicant, the court determines the following:

(1) Probable cause exists to believe that the person whose

communications are to be intercepted is committing, has

committed, or may commit a designated offense.

(2) Communications concerning the designated offense

identified in the warrant application are likely to be obtained

through the requested interception.

(3) Exigent circumstances are present that require the

preservation of secrecy where there is a reasonable likelihood

that a continuing investigation would be prevented if a person

subject to investigation was alerted to the fact that the

investigation was occurring.

(4) A place or facility from which communications are to be

intercepted is:

(A) being used or about to be used by;

(B) listed in the name of;

(C) leased to; or

(D) commonly used by;

a person who is committing, has committed, or may commit a

designated offense.

(5) Investigative procedures:

(A) have been tried but have failed;

(B) are unlikely to succeed; or

(C) are too dangerous to attempt.

(b) In making a determination of probable cause required under

subsection (a)(1) before a warrant may be issued by the court, the

court may examine under oath any person. The court shall order the

court reporter to:

(1) prepare a verbatim transcript of an examination made under

this subsection; and

(2) attach the transcript to the application for the warrant.

(c) In making a determination of probable cause required under

subsection (a)(1) before a warrant may be issued by the court, if

there is no corroborative evidence offered in support of the allegation

of probable cause, the court shall inquire in camera concerning:

(1) the identity of any informants; or

(2) any additional information the court considers relevant to a

determination of probable cause to believe that the person

whose communications are to be intercepted is committing, has

committed, or may commit a designated offense.

(d) The court may modify the application and authorize a warrant

or an extension that is more limited in authority for interception than

IC 35-33.5-4

Chapter 4. Procedures Regarding Intercepted Communications

IC 35-33.5-4-1

Limitations; mandatory assistance to accomplish interception;

compensation

35-33.5-4-1 Sec. 1. (a) A court may not authorize interception

under a warrant or an extension for a period longer than is necessary

to achieve the objective of the warrant or extension. A warrant and

each extension may authorize interception for not more than fourteen

(14) days. A court that issues a warrant or an extension shall order

that the authorized interception must:

(1) occur within three (3) days after the court issues the warrant

or extension;

(2) be conducted in a manner that minimizes the interception of

a communication that is clearly irrelevant to the investigation of

a designated offense; and

(3) terminate upon completion of the authorized objective or

within fourteen (14) days after the interception begins,

whichever occurs first.

(b) A court may grant not more than three (3) extensions.

(c) A warrant or an extension may direct that a person

immediately furnish an applicant all information, facilities, and

technical assistance within that person's control necessary to

accomplish the interception with a minimum of interference with the

services that the person is furnishing to the person whose

communication is to be intercepted. The applicant shall compensate

a person furnishing facilities or technical assistance to the applicant

at the prevailing rates.

As added by P.L.161-1990, SEC.3.

IC 35-33.5-4-2

Progress reports to court

35-33.5-4-2 Sec. 2. Whenever a warrant or an extension is issued

under this article, the court shall order that reports be submitted to

the court indicating the progress that has been made toward the

authorized objective and whether continued interception is necessary.

The court may establish the times when a report is required.

As added by P.L.161-1990, SEC.3.

IC 35-33.5-4-3

Inventory to party of terminated warrant or extension;

information available to person whose communications have

been intercepted; postponement of inventory services

35-33.5-4-3 Sec. 3. (a) Within sixty (60) days after the termination

of a warrant or an extension, the court shall cause to be served upon

each person from whom communication was to be intercepted and

upon any other party to an interception whom the court determines

it is in the interest of justice to serve, an inventory that includes

notice of the following:

IC 35-33.5-5

Chapter 5. Confidentiality of Disclosure, Remedies, and Offenses

IC 35-33.5-5-1

Disclosure in court; information to parties in advance

35-33.5-5-1 Sec. 1. The contents of an interception under this

article or evidence derived from the interception may not be received

into evidence or otherwise disclosed during a court proceeding

unless each party, not less than fourteen (14) days before the

proceeding, has been furnished with a copy of the application,

warrant, and any orders for an extension under which the

interception was authorized. The fourteen (14) day period may be

waived by the court if the court finds that:

(1) it is not possible to furnish each party with the information

at least fourteen (14) days before the proceeding; and

(2) a party will not be prejudiced by the delay in receiving the

information.

As added by P.L.161-1990, SEC.3.

IC 35-33.5-5-2

Recording contents of authorized interception; sealing

documents; disclosure; destruction of documents

35-33.5-5-2 Sec. 2. (a) The contents of an authorized interception

under this article shall be mechanically or electronically recorded.

Immediately upon the expiration of the warrant or extension, the

court shall order that recordings be sealed. The court shall determine

who is entitled to custody of the recordings. The court shall order

that the recordings be kept for at least ten (10) years. The recordings

may be destroyed after ten (10) years only upon an order of the court

that issued the warrant.

(b) A warrant or an extension granted under this article, as well as

the application for a warrant or extension, shall be sealed by the

court to which the application is made. The court shall determine

who is entitled to custody of the application and warrant or

extension. An application and a warrant or an extension shall be

disclosed only upon a showing of good cause before the issuing

court. The court shall order that the application and warrant or

extension may not be destroyed for at least ten (10) years after the

date granted, and then only upon the order of the court that issued the

warrant.

As added by P.L.161-1990, SEC.3.

IC 35-33.5-5-3

Disclosure by law enforcement officer; persons other than

officer; privileged character of communication; offenses not

specified in order

35-33.5-5-3 Sec. 3. (a) A law enforcement officer who has

obtained knowledge under this article of the contents of an

interception or of evidence derived from that interception may:

(1) disclose the contents to another law enforcement officer; or

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

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;

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 35-35-2

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

IC 35-36

ARTICLE 36. PRETRIAL NOTICES, MOTIONS, AND

PROCEDURES

IC 35-36-1

Chapter 1. Definitions

IC 35-36-1-1

Definitions

35-36-1-1 Sec. 1. As used in this article:

"Insanity" refers to the defense set out in IC 35-41-3-6.

"Mentally ill" means having a psychiatric disorder which

substantially disturbs a person's thinking, feeling, or behavior and

impairs the person's ability to function; "mentally ill" also includes

having any mental retardation.

"Omnibus date" refers to the omnibus date established under

IC 35-36-8-1.

As added by Acts 1981, P.L.298, SEC.5.

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

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 35-36-4

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 35-36-5

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

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

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 35-36-8-2

Withdrawal by counsel; grounds; time limit; restriction

35-36-8-2 Sec. 2. (a) Counsel for a defendant charged with a

felony or misdemeanor may withdraw from the case for any reason,

including failure of the defendant to fulfill an obligation with respect

to counsel's fee, at any time up to thirty (30) days before the omnibus

date.

(b) However, the court shall allow counsel for the defendant to

IC 35-36-9

Chapter 9. Pretrial Determination of Mental Retardation in Death

Sentence Cases

IC 35-36-9-1

Applicability

35-36-9-1 Sec. 1. This chapter applies when a defendant is

charged with a murder for which the state seeks a death sentence

under IC 35-50-2-9.

As added by P.L.158-1994, SEC.3. Amended by P.L.2-1996,

SEC.283.

IC 35-36-9-2

"Mentally retarded individual" defined

35-36-9-2 Sec. 2. As used in this chapter, "mentally retarded

individual" means an individual who, before becoming twenty-two

(22) years of age, manifests:

(1) significantly subaverage intellectual functioning; and

(2) substantial impairment of adaptive behavior;

that is documented in a court ordered evaluative report.

As added by P.L.158-1994, SEC.3.

IC 35-36-9-3

Petition alleging mental retardation; filing

35-36-9-3 Sec. 3. (a) The defendant may file a petition alleging

that the defendant is a mentally retarded individual.

(b) The petition must be filed not later than twenty (20) days

before the omnibus date.

(c) Whenever the defendant files a petition under this section, the

court shall order an evaluation of the defendant for the purpose of

providing evidence of the following:

(1) Whether the defendant has a significantly subaverage level

of intellectual functioning.

(2) Whether the defendant's adaptive behavior is substantially

impaired.

(3) Whether the conditions described in subdivisions (1) and (2)

existed before the defendant became twenty-two (22) years of

age.

As added by P.L.158-1994, SEC.3.

IC 35-36-9-4

Hearing on petition

35-36-9-4 Sec. 4. (a) The court shall conduct a hearing on the

petition under this chapter.

(b) At the hearing, the defendant must prove by clear and

convincing evidence that the defendant is a mentally retarded

individual.

As added by P.L.158-1994, SEC.3.

IC 35-36-9-5

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

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

 

IC 35-37-2.5

Chapter 2.5. Repealed

(Repealed by P.L.213-2005, SEC.9.)

 

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 35-37-4

Chapter 4. Evidence and Protection of Certain Witnesses

IC 35-37-4-1

Competency of witness

35-37-4-1 Sec. 1. A person who is competent to testify in civil

actions is also competent to testify in criminal proceedings.

As added by Acts 1981, P.L.298, SEC.6.

IC 35-37-4-2

Credibility; general moral character

35-37-4-2 Sec. 2. In all questions affecting the credibility of a

witness, his general moral character may be given in evidence.

As added by Acts 1981, P.L.298, SEC.6.

IC 35-37-4-3

Depositions

35-37-4-3 Sec. 3. The state and the defendant may take and use

depositions of witnesses in accordance with the Indiana Rules of

Trial Procedure.

As added by Acts 1981, P.L.298, SEC.6.

IC 35-37-4-4

Sex crimes; admissibility of evidence of past sexual conduct;

procedure

35-37-4-4 Sec. 4. (a) In a prosecution for a sex crime as defined

in IC 35-42-4:

(1) evidence of the victim's past sexual conduct;

(2) evidence of the past sexual conduct of a witness other than

the accused;

(3) opinion evidence of the victim's past sexual conduct;

(4) opinion evidence of the past sexual conduct of a witness

other than the accused;

(5) reputation evidence of the victim's past sexual conduct; and

(6) reputation evidence of the past sexual conduct of a witness

other than the accused;

may not be admitted, nor may reference be made to this evidence in

the presence of the jury, except as provided in this chapter.

(b) Notwithstanding subsection (a), evidence:

(1) of the victim's or a witness's past sexual conduct with the

defendant;

(2) which in a specific instance of sexual activity shows that

some person other than the defendant committed the act upon

which the prosecution is founded; or

(3) that the victim's pregnancy at the time of trial was not

caused by the defendant;

may be introduced if the judge finds, under the procedure provided

in subsection (c) of this section, that it is material to a fact at issue in

the case and that its inflammatory or prejudicial nature does not

outweigh its probative value.

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

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 35-38

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 35-38-1-1.5

Converting Class D felony to Class A misdemeanor

35-38-1-1.5 Sec. 1.5. (a) A court may enter judgment of

conviction as a Class D felony with the express provision that the

conviction will be converted to a conviction as a Class A

misdemeanor within three (3) years if the person fulfills certain

conditions. A court may enter a judgment of conviction as a Class D

felony with the express provision that the conviction will be

converted to a conviction as a Class A misdemeanor only if the

person pleads guilty to a Class D felony that qualifies for

consideration as a Class A misdemeanor under IC 35-50-2-7, and the

following conditions are met:

(1) The prosecuting attorney consents.

(2) The person agrees to the conditions set by the court.

(b) For a judgment of conviction to be entered under subsection

(a), the court, the prosecuting attorney, and the person must all agree

to the conditions set by the court under subsection (a).

(c) The court is not required to convert a judgment of conviction

entered as a Class D felony to a Class A misdemeanor if, after a

hearing, the court finds:

(1) the person has violated a condition set by the court under

subsection (a); or

(2) the period that the conditions set by the court under

subsection (a) are in effect expires before the person

successfully completes each condition.

However, the court may not convert a judgment of conviction entered

as a Class D felony to a Class A misdemeanor if the person commits

a new offense before the conditions set by the court under subsection

(a) expire.

(d) The court shall enter judgment of conviction as a Class A

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

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 35-38-2.5-2

"Home" defined

35-38-2.5-2 Sec. 2. As used in this chapter, "home" means:

(1) the interior living area of the temporary or permanent

residen