Braxton v. State

ROBERTSON, Judge,

dissenting.

I respectfully dissent. By statute, the commission of an additional crime constitutes grounds for revocation of probation. Ind. Code 35-838-2-1(b)(2). Thus, we have held *442that a condition of every probation, imposed by operation of law even in the absence of any express condition imposed by the court, is that the probationer refrain from eriminal conduct during the probationary period. Boyd v. State (1985), Ind.App., 481 N.E.2d 1124. The trial court may revoke probation for the mere commission of a criminal offense during the probationary period which the State has properly established by a preponderance of the evidence. Id.

Similarly, a condition of every home detention order is that the offender is not to commit another crime while on home detention. I.C. 35-88-2.5-6(4). Under the present cireumstances, there is no meaningful distinction between an order of probation and an order of home detention. By operation of law, the commission of another crime constitutes the grounds for the revocation of home detention, regardless of whether the trial court imposed an express condition that the offender refrain from eriminal conduct while on home detention.

The possession of marijuana is a criminal offense. Ind.Code 35-48-4-11. The State sufficiently alleged and proved by a preponderance, that Braxton used and possessed marijuana while on home detention. Therefore, the trial court did not err in revoking Braxton's home detention and imposing the previously suspended sentence.

Moreover, the record affirmatively demonstrates that the State filed its first petition for revocation of home detention on October 9, 1992. The trial court held a hearing at which Braxton and her attorney were present and made the following entry:

[Braxton] admits that she violated the conditions of her in-home detention privilege in that she used marijuana and cocaine.

After receiving substance abuse treatment, Braxton was placed back on home detention.

The present, corrected, amended petition for the revocation of Braxton's home detention was filed on July 26, 1998, and alleged that Braxton had violated the terms of her home detention by, among other violations, using and possessing marijuana on July 13, 1998. Considering Braxton's earlier in-court admission that a condition of her home detention was that she refrain from using marijuana, there can be no serious contention that she was not on actual notice of this condition at the time she committed the violations upon which the present revocation was based. Therefore, the failure to enter a written copy of the conditions of Braxton's home detention into evidence was harmless error because it did not prejudice her substantial rights. See Boyd, 481 N.E.2d 1124, 1126. Therefore, the trial court's revocation of Braxton's home detention and the imposition of her previously suspended sentence should be affirmed.