dissenting.
I respectfully dissent from the majority opinion in this case. Appellant obtained a modified sentence of his conviction by perpetrating a fraud upon the court, in that he entered into an agreement with the State that he would testify against one Ben William Thomas in exchange for the modified sentence. This agreement was carried out and appellant did in fact testify against Thomas and the court modified his original sentence.
Subsequently, when appellant recanted that testimony in a post-conviction relief *791action filed by Thomas, he in effect admitted that he had perpetrated a fraud upon the court in obtaining his modified sentence. "Fraud vitiates every transaction and all contracts.... and even judgments." 37 Am.Jur.2d, Froud and Deceit § 8.
In Partlow v. State (1924), 195 Ind. 164, 144 N.E. 661, this Court held:
"The fundamental principle of our jurisprudence that a final judgment shall forever put at rest the controversy involved in the litigation, must not rest upon fraud practiced upon the court; or falsities instead of, and in preference to realities." Id at 171, 144 N.E. at 663.
In Partlow, the Court went on to say:
"Where a judgment has been obtained by fraud upon the court, it may vacate such judgment and grant a new trial, even after the end of the term at which such judgment was rendered." Id. at 172, 144 N.E. at 664.
Appellant having obtained his modification of judgment by fraud, the trial court was well within his discretion in setting aside such fraudulently obtained modification. When that was accomplished, it was as though the modification had never existed and the original judgment was in full force and effect. Thus, the trial judge was correct in so ordering.
I would affirm the trial court.