Weissmann, J.
Six months after James Mosley was imprisoned for fraud, Mosley sent an apology letter to one of his victims. A no-contact order imposed as a condition of his probation barred that contact. Unbeknownst to the parties, the victim had died about two years before Mosley’s sentencing, when the trial court entered the no-contact order. Nonetheless, the trial court found Mosley violated the terms of his probation by writing to the deceased woman, consequently revoked three years of Mosley’s probation, and ordered him to spend those years in prison.
Finding a no-contact order cannot be issued to protect a dead person and that Mosley’s probation cannot be revoked based on violation of that void order, we reverse the trial court’s judgment.
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Mosley claims the State did not prove he violated the conditions of his probation because those conditions were unconstitutionally vague and the no-contact order was void. We agree and reverse.
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Mosley first claims the State did not prove he knowingly or intentionally attempted to violate a valid no-contact order. Mosley reasons that the no-contact order is void because Indiana law does not authorize a judge to prohibit a probationer’s contact with a dead person. The State responds by arguing the no-contact order was voidable, not void, and that B.P.’s death prior to the no-contact order is irrelevant.
The distinction between a void and voidable judgment normally “is no mere semantic quibble.” Stidham v. Whelchel, 698 N.E.2d 1152, 1154 (Ind. 1998). A void order is invalid, and nothing can cure it. Kitchen v. Kitchen, 953 N.E.2d 646, 650 (Ind. Ct. App. 2011). A “voidable” order, by contrast, “exists when an imperfection or defect can be cured by the act or confirmation of him who could take advantage of it.” Id. A voidable order may be attacked only through a direct appeal, but a void judgment is subject to direct or collateral attack at any time. Id.
We agree with Mosley that the no-contact order was void and could not support either a prosecution for attempted invasion of privacy or a probation revocation based on his commission of that offense. A trial court’s authority to impose a no-contact order as a condition of probation arises from Indiana Code § 35-38-2-2.3(a)(18), which specifies that the trial court may order the probationer to “[r]efrain from any direct or indirect contact with an individual.” Neither that statute nor any related laws define “individual.”
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The State maintains that even if the no-contact order is invalid, the probation revocation should stand because the attempt statute provides: “It is no defense that, because of a misapprehension of the circumstances . . . it would have been impossible for the accused person to commit the crime attempted.” I.C. § 35-41- 5-1(b). In pursuing this argument, the State ignores its role in the issuance of the void no-contact order. If, prior to requiring the no-contact order as a condition of the plea agreement, the State had attempted to ascertain whether B.P. actually desired and/or needed the protection of a no-contact order, it easily would have discovered that the no-contact order as to B.P. was unmerited. The State essentially is asking us to find Mosley should spend three more years in prison for attempting to violate a no-contact order that the State should never have sought and the trial court should never have entered as to a victim who no longer needed protection.
Regardless, the State’s focus on the unavailability of an impossibility defense under Indiana Code § 35-41-5-1(b) is unavailing. A probation revocation cannot be based on the violation of a void condition of probation. See, e.g., Foster v. State, 813 N.E.2d 1236, 1239 (Ind. Ct. App. 2004) (reversing probation revocation based on violation of term of probation void for vagueness). As the no-contact order imposed as a condition of probation is void, the trial court abused its discretion in revoking Mosley’s probation for attempting to violate that order. Borrowing the words of the United States Supreme Court, “That seems to us to be the common sense of the matter; and common sense often makes good law.” Peak v. United States, 353 U.S. 43, 46 (1957).
The judgment of the trial court is reversed.
Kirsch, J., and Altice, J., concur