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Ashba v. State , 1991 Ind. LEXIS 209 ( 1991 )


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  • 580 N.E.2d 244 (1991)

    Ernest B. ASHBA, Jr., Appellant (Defendant below),
    v.
    STATE of Indiana, Appellee (Plaintiff below).

    No. 85S02-9111-CR-876.

    Supreme Court of Indiana.

    November 4, 1991.

    *245 Alan J. Zimmerman, Wabash, for appellant.

    Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

    ON PETITION TO TRANSFER

    PER CURIAM.

    Appellant Ernest B. Ashba, Jr., was sentenced to six years in prison for burglary. The trial court suspended four years of the sentence and placed him on probation. Eventually, the Department of Correction paroled Ashba, who committed another offense while on parole. The Department revoked his parole and ordered him to serve 180 days in prison. The trial court then revoked his probation and ordered an additional 180 days executed.

    The Court of Appeals held that the trial court was authorized to revoke Ashba's probation while he was at the Department of Correction serving the 180 days for violating parole. It also rejected Ashba's contention that double jeopardy prohibited revoking both parole and probation based on a single post-release offense. Ashba v. State (1991), Ind. App., 570 N.E.2d 937.

    The Court of Appeals correctly decided these issues of first impression. We grant transfer and affirm their decision. Ind.Appellate Rule 11(B)(3).

    SHEPARD, C.J., and GIVAN, DICKSON and KRAHULIK, JJ., concur.

    DeBRULER, J., dissents with opinion.

    DeBRULER, Justice, dissenting.

    I agree with appellant that the trial court lacked jurisdiction to add an additional 180 days executed to the initial two years executed, for the reason that the misconduct upon which that enhancement rests occurred before he began his probationary term. I likewise agree with appellant that his subjection to two hearings upon the one misconduct allegation, by two separate tribunals at the time serving the same penal interest, namely the interest in enforcing the burglary statute, resulting in two separately suffered penal sanctions, was prohibited by the double jeopardy clauses.

    I therefore would grant transfer and reverse.