Concurring Opinion
DeBruler, J.I concur, but would like to clarify one point. The trial judge did not base his denial of appellant’s petition for election of treatment on Ind. Code § 16-13-7.5-16 (a) or *447(c), Burns § 9-8916 (1973). That statute read, in relevant part:
“A drug abuser charged with or convicted of a crime is eligible to elect treatment under the supervision of the department instead of prosecution or probation, as the case may be, unless (a) the crime is a crime of violence . . . (c_) the drug abuser has a record of two [2] or more prior convictions of a crime of violence. . . .”
The trial court’s preliminary findings were:
“That the defendant has been convicted of a crime of violence, to-wit: First Degree Burglary; that the defendant has been convicted of Theft Less Than One Hundred Dollars and not from the Person, in this cause; That the defendant was convicted in this cause on February 8th, 1973, by plea bargaining, on the charge originally of Robbery, which is a crime of violence. Court further finds that the law requires a conviction of two (2) or more convictions of a crime of violence; That by reason thereof, the defendant is entitled to an examination subject to prosecution pursuant to Burns 9-3918, for the purpose of determining whether or not the defendant is a drug abuser and whether he is an appropriate person for rehabilitation. Defendant ordered committed to the Indiana Department of Health for such examinations.”
The trial court construed the statute not to include the charge originally brought against a person who has been convicted of a lesser included offense. This construction is precisely correct.
After receiving the letter presenting the findings and conclusion of the Department of Mental Health, the trial court could consider, not only the Department’s conclusion, but also its findings; appellant’s record, including the fact that a Robbery charge was reduced in the process of plea bargaining; and his own evaluation of appellant in his court. The Legislature chose to give the trial judge great discretion in determining whether a person would be rehabilitated through treatment. In the exercise of this discretion, the trial judge denied this petition.
Note. — Reported at 347 N.E.2d 581.