Traditional rule that a post-conviction court may not take judicial of the transcript in the original proceedings appears to have been ended by the 2010 amendment to Evidence Rule 201(b)(5) allowing judicial notice of “records of a court of this state,” but since petitioner did not request judicial notice and court did not sua sponte take it the transcript was not in evidence in the post-conviction proceeding.
Criminal
Dawson v. State, No. 49S02-1103-CR-176, __ N.E.2d __ (Ind., March 29, 2011)
P-C.R. 2 does not allow belated appeals from orders revoking probation.
Griffin v. State, No. 49A02-1007-CR-774, __ N.E.2d __ (Ind. Ct. App., Mar. 30, 2011)
Evidence that marijuana blunt was in plain view on center console between driver and defendant passenger, coupled with testimony of strong marijuana smell in vehicle, was sufficient to prove defendant constructively possessed the marijuana; distinguishes Gray v. State.
Adams v. State, No. 29A02-1008-CR-903, __ N.E.2d __ (Ind. Ct. App., Mar. 31, 2011)
Evidence that a jar of marijuana was found on car floor in front of defendant passenger’s seat established that the car was “used” to commit possession of marijuana, so that the defendant’s license could be suspended under IC 34-48-4-15.
Smith v. State, No. 35A02-1008-CR-996, __ N.E.2d __ (Ind. Ct. App., Mar. 23, 2011)
To revoke probation for failure to comply with the condition to pay child support, the State has burden to prove by a preponderance 1) less than full payment, and 2) the less than full payment was made recklessly, knowingly, or intentionally, which requires the State to prove the probationer’s ability to pay.