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177 Ind. App. 355

379 N.E.2d 539

Baldock v. State

Indiana Court of Appeals

Decided August 23, 1978

Indiana Court of Appeals · decided 1978-08-23

Cited by 14 later decisions — most recently January 1995

10 state decisions

Key passage — most relied on by later courts

“—The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including but not limited to (1) the time elapsing between the arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel, and (5) whether or not such defendant-was without the assistance of counsel when questioned and when giving such confession. The presence or absence of any of the above mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession. IC 35-5-5-2. [Emphasis added.]”

quoted by 1 later decision, including Mulry v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1978-08-23

View the full empirical analysis of this case →

¶1CONCURRING OPINION

Garrard, P.J.

¶2I concur in affirming the convictions for malicious trespass and assault and battery.

¶3However, I must dissent concerning the convictions for driving while suspended in violation of IC 9-1-4-52.

¶4These offenses allegedly occurred on May 3 and May 30,1975. They are concededly based upon a suspension order issued May 15,1973. By the terms of that order the suspension was for one (1) year and expired, according to the order, on May 15, 1974.

¶5IC 9-1-4-52 prohibits driving a motor vehicle on a public highway by someone while his license or permit is suspended or revoked. Baldock’s *360license had been suspended May 15,1973 and that suspension expired May 15,1974. Thus, on May 3 and May 30,1975 he simply was not driving while his license was suspended.

¶6This is not altered by the provision of IC 9-2-l-ll(d) which prohibits restoration or renewal of operating privileges until a five dollar reinstatement fee is paid. That section (unlike the preceding ones dealing with suspensions concerning lack of financial responsibility) does not provide that the suspension shall remain in effect. It merely requires that the fee be paid if the driver wishes to restore his Indiana license.

¶7Of course, under the facts Baldock was guilty of operating without a license. IC 9-1-4-26. But that is not the offense with which he was charged or convicted.

¶8Accordingly the convictions for driving while suspended should be reversed. It follows that sentences for the remaining offenses should be served concurrently.

¶9I would therefore remand with instructions to vacate the convictions for driving while suspended and to correct the sentences for malicious trespass and assault and battery by providing that they run concurrently.

¶10NOTE — Reported at 379 N.E.2d 539.

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