Victoria Marie Tidwell v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Nov 26 2018, 7:40 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Andrew R. Falk Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Victoria Marie Tidwell, November 26, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1185
v. Appeal from the Hendricks
Superior Court
State of Indiana, The Honorable Rhett Stuard,
Appellee-Plaintiff. Judge
Trial Court Cause No.
32D02-1706-CM-752
Brown, Judge.
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[1] Victoria Marie Tidwell appeals her convictions for dog bite liability resulting in
injury and her convictions for harboring a non-immunized dog. Tidwell raises
three issues including whether the State may bring a claim for restitution upon
remand, whether the State presented sufficient evidence to sustain her
convictions for dog bite liability resulting in injury, and whether double
jeopardy precludes her convictions for harboring a non-immunized dog. We
remand.
Facts and Procedural History
[2] On June 2, 2017, the State charged Tidwell with three counts of dog bite
liability resulting in injury as class C misdemeanors as Counts I, II, and III.
The State later amended Count I to a class A misdemeanor and added three
counts of harboring a non-immunized dog as class B misdemeanors.
[3] On April 6, 2018, the court held a bench trial and found Tidwell guilty as
charged. The court asked the parties if there was any reason it should not
proceed directly to sentencing, and counsel for each party indicated that there
was no reason. The court sentenced Tidwell to concurrent sentences of ninety
days for each count, suspended all ninety days, and placed her on probation for
365 days. The prosecutor asked for a hearing on restitution. Upon questioning
by the court, the prosecutor indicated that he could participate in a hearing
within a month. Tidwell’s counsel stated in part that “even if restitution is
entered, I don’t believe she has the ability to make the – make the payments on
the restitution.” Transcript Volume II at 82. After some discussion, the court
stated: “What we’ll probably have to do, [Tidwell’s counsel], is just make it a
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civil judgment at that point, okay?” Id. The court asked Tidwell’s counsel if
she could be at a hearing on April 30th, and Tidwell’s counsel responded
affirmatively. The court scheduled a restitution hearing for April 30, 2018. The
court informed Tidwell that she had the right to appeal the finding of guilt and
sentence and must file a notice of appeal within thirty days. The court
appointed the Hendricks County Public Defender’s Office to represent her for
purposes of appeal. That same day, the court entered a Judgment of
Conviction, Sentencing Order and Order of Commitment which stated in part:
“Hearing on Restitution Set 4-30-2018 at 10:30 A.M.” Appellant’s Appendix
Volume II at 23 (capitalization omitted).
[4] On April 30, 2018, the court held a hearing on restitution. After the
presentation of evidence, Tidwell’s counsel stated in part that “this case is up on
appeal” and requested that any restitution be stayed pending disposition of that
appeal.1 Transcript Volume II at 102. The court indicated that it was not sure
it had jurisdiction to enter restitution “at this point” and stated:
We entered sentencing and – and there’s a case Wilson versus
State, 688 N.E.[2d] 1293, that tells me that if I don’t give
restitution at the time of sentencing, I – the only way I can hold it
open is if there’s a specific, uh, order that I – where I say, we’re
going to set this. Uh, I don’t know that I did that. I – I know we
mentioned it at sentencing. I know we talked about it – asked
you about, uh, restitution, you said you’d like to come back at a
different day and do that and I – you know I’d have to go back
1
As pointed out by the State, the appeal to which Tidwell’s counsel was referring is unclear as the notice of
appeal which initiated this appeal was not filed until May 7, 2018.
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and listen to exactly what was said. Uh, but let’s assume that I
did say we’re going to – we’re going to keep sentencing open for
another day which would, I think, under the Wilson case, might
preserve it for today’s date, uh, I think that the best thing for us to
do at this point is stay any award of damages – not damages,
restitution, uh, in this case till the appeal is complete and see
what happens.
Id. at 103-104. On May 7, 2018, Tidwell filed a notice of appeal.
Discussion
[5] To the extent the trial court cited Wilson v. State, 688 N.E.2d 1293 (Ind. Ct.
App. 1997), and Tidwell mentions it on appeal, we note that the trial court’s
sentencing order in that case did not purport to retain any continuing
jurisdiction over Wilson and the trial court lost its authority to modify Wilson’s
sentence. Unlike in Wilson, Tidwell’s counsel did not object to the holding of a
hearing on restitution when it was scheduled at the April 6, 2018 bench trial
and the trial court’s April 6, 2018 sentencing order explicitly states that a
restitution hearing was scheduled for April 30, 2018. Under these
circumstances and in the interest of judicial efficiency, we retain jurisdiction
and remand for the trial court to issue an order regarding the State’s request for
restitution. After the trial court issues its order on restitution, we will address
Tidwell’s issues on the merits. Tidwell may file a revised brief, without a new
notice of appeal, within thirty days of the issuance of the trial court’s order on
restitution and the State may file a revised brief within forty-five days of the trial
court’s order or thirty days of Tidwell’s revised brief, whichever is later.
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Conclusion
[6] For the foregoing reasons, we remand for further proceedings consistent with
this opinion.
[7] Remanded.
Altice, J., and Tavitas, J., concur.
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