State v. Porter

¶1concurring in result.

¶2The majority decision computes the statutory 365 day limitation on the authority of the trial court to modify the sentence from June 5, 1997, the date of imposition of the original sentence. In this regard, the majority appropriately considers the order of April 26, 1999, to be a modification of the original sentence.2 However, if the change in placement from the DOC to the Community Corrections Complex ordered April 26, 1999, constituted a statutory modification, then the same construction should be afforded to the October 2, 1997 modification, which changed the Community Corrections placement of June 10, 1997, back to the DOC.

¶3The sentence in effect as of the date of the most recent modification was the sentence as set forth in the October 2, 1997 order. The permissible 365-day statutory period for further modification expired October 1, 1998. I therefore agree that the modification of April 26, 1999, came too late. In doing so, however, I do not retreat from the position taken in my separate opinion in Schweitzer v. State, 700 N.E.2d 488, 492 (Ind.Ct.App.1998) et seq., trans. denied.

¶4ORDER

¶5This Court having heretofore handed down its opinion in this case marked Memorandum Decision, Not for Publication; and

¶6Comes now the Appellant, by counsel, and files herein its Motion to Publish, alleging therein that publication of the opinion would assist both trial courts and this Court to understand that the placement of a convict into community corrections is a sentence modification pursuant to I.C. 35-36-l-17(b), which said Motion to Publish is in the following words and figures, to-wit:

¶7(H.I.)

¶8And the Court, having examined said Motion and being duly advised, now finds that the same should be granted.

¶9IT IS THEREFORE ORDERED as follows:

¶101. The Appellant’s Motion to Publish is granted and this Court’s opinion heretofore handed down in this cause on March 30, 2000, marked Memorandum Decision, *594Not for Publication, is now ordered published;

¶112. The Clerk of this Court is directed to send copies of said opinion together with copies of this order to the West Publishing Company and all other services to which published opinions are normally sent, together with sending copies to all counsel of record in this cause.