Indiana Court of Appeals and Handgun Possession

[Fargo]

Geez man, I was in high school...

 

[T.Lex]

haha

Speaking of inside baseball, the idea of 'certified question' for interloc is different than what people think. It isn't like a federal court asking the ISC a certified question. Under App. R. 5 and 14, an interlocutory order can be appealed. That order is basically the vehicle for the entire case to be presented to the App. Ct. For instance, while a SJ may be the notional subject of the appeal, a prior Motion to Dismiss can also be argued - either explicitly, or at the invitation of the court.

Interloc appeals can be very tricky to figure out what really needs to be argued.

@Hough - let me guess, a Selby opinion?

 

[HoughMade]

haha

Speaking of inside baseball, the idea of 'certified question' for interloc is different than what people think. It isn't like a federal court asking the ISC a certified question. Under App. R. 5 and 14, an interlocutory order can be appealed. That order is basically the vehicle for the entire case to be presented to the App. Ct. For instance, while a SJ may be the notional subject of the appeal, a prior Motion to Dismiss can also be argued - either explicitly, or at the invitation of the court.

Interloc appeals can be very tricky to figure out what really needs to be argued.

@Hough - let me guess, a Selby opinion?

First, as to the nature of an interlocutory appeal, yeah, you present the issue, but then everything in the case is fair game if there is certification for interlocutory appeal. I have one going on now and another I am watching closely where I represented a party in the trial court, but another party got whacked, and then got relief from the whack...and it's going up.

Second, yes.

Geez man, I was in high school...

It doesn't make me feel that much better that this was within my first year of practice...given that I worked for 3 years between college and law school. I'm old.

 

[T.Lex]

Second, yes.

haha

I started doing appeals in 1998. Sullivan's could be quirky, but hers were often just... poorly written. The legal part was usually solid, but the writing was just... bad.

 

[jamil]

First, as to the nature of an interlocutory appeal, yeah, you present the issue, but then everything in the case is fair game if there is certification for interlocutory appeal. I have one going on now and another I am watching closely where I represented a party in the trial court, but another party got whacked, and then got relief from the whack...and it's going up.

Second, yes.



It doesn't make me feel that much better that this was within my first year of practice...given that I worked for 3 years between college and law school. I'm old.

My eyes glassed over at "interlocutory". But I understand age. You're not old until your salt-n-pepper hair/beard has turned mostly salt AND everything hurts AND you engage your old friends in conversations about whose what hurts most. You sir. Are a still a whippersnapper. Well, me too actually. I contend with my hair dresser that I still have more pepper than salt.

 

[lonehoosier]

Update?

 

[2A_Tom]

Pinner was recorded on August 24 Today is the last working day that a transfer could be requested, unless the court allows it to be filed late due to the 24th of September being on a weekend.

Lawyers?

To renew the argument though, This ruling could be rendered moot through either action of the legislature (in either direction) as in Barnes, or by new case law involving reasonable suspicion where an officer actually noticed the firearm prior to the stop.

 

[Fargo]

Pinner was recorded on August 24 Today is the last working day that a transfer could be requested, unless the court allows it to be filed late due to the 24th of September being on a weekend.

Lawyers?

To renew the argument though, This ruling could be rendered moot through either action of the legislature (in either direction) as in Barnes, or by new case law involving reasonable suspicion where an officer actually noticed the firearm prior to the stop.

Nothing filed yet per the CCS. I honestly don't remember if 30th day being on a weekend gives you till Monday and I'm too lazy to look it up when there are a couple attorneys who do appellate work on here who will know off the top of their head.

New Ct. of Appeals caselaw on slightly different facts wouldn't render Pinner moot. Named complainant saying he had a gun is just as sufficient for RS as a cop seeing the gun so it is a distinction without difference. Pinner only becomes bad law with new statute or InSupCt. ruling. Splits among panels of the Ct. of Appeals lead to more of a limbo type area. I know of two current panel splits which have been left unresolved by the SupCourt. They are resisting law enforcement with injury, where the cop hurts himself trying to apprehend a suspect and the misdemeanor presence arrest rule where there is an unequivocal confession.

 

[HoughMade]

Nothing filed yet per the CCS. I honestly don't remember if 30th day being on a weekend gives you till Monday ...

Yes, it does.

 

[T.Lex]

Yes, it does.

I totally disagree.

If the last day falls on a weekend or court holiday, the due date is the next business day.



Oh, and you don't get the extra days for mailing. It has to be filed by that date. There was a capital case appellate lawyer that almost learned that lesson in a very permanent way (although I think that was at the habeas level, so there were even more rules and exceptions involved).

 

[2A_Tom]

Nothing filed yet per the CCS. I honestly don't remember if 30th day being on a weekend gives you till Monday and I'm too lazy to look it up when there are a couple attorneys who do appellate work on here who will know off the top of their head.

New Ct. of Appeals caselaw on slightly different facts wouldn't render Pinner moot. Named complainant saying he had a gun is just as sufficient for RS as a cop seeing the gun so it is a distinction without difference. Pinner only becomes bad law with new statute or InSupCt. ruling. Splits among panels of the Ct. of Appeals lead to more of a limbo type area. I know of two current panel splits which have been left unresolved by the SupCourt. They are resisting law enforcement with injury, where the cop hurts himself trying to apprehend a suspect and the misdemeanor presence arrest rule where there is an unequivocal confession.

It is interesting that you should mention this. Since carrying a firearm w/o a license is a misdemeanor wouldn't the officer actually witness said misdemeanor in order to act upon it?

 

[Fargo]

It is interesting that you should mention this. Since carrying a firearm w/o a license is a misdemeanor wouldn't the officer actually witness said misdemeanor in order to act upon it?

Off the top of my head, Hgun without a License is one of the 8 or so crimes explicitly excluded from the misdemeanor presence rule.

Edit: Yup 35-33-1-1(a)(7) excepts handgun w/o license from the presence rule.

 

[2A_Tom]

OK, is there a difference between an affidavit and a accusation by someone who then leaves the scene?

The officer may use an affidavit executed by an individual alleged to have direct knowledge of the incident alleging the elements of the offense of battery to establish probable cause;
(6) probable cause to believe that the person violated IC 35-46-1-15.1 (invasion of privacy);
(7) probable cause to believe that the person violated IC 35-47-2-1 (carrying a handgun without a license) or IC 35-47-2-22 (counterfeit handgun license);
- See more at: Indiana Code Title 35. Criminal Law and Procedure IN CODE § 35-33-1-1 | FindLaw


af·fi·da·vit
/ˌafəˈdāvit/
nounLAW
a written statement confirmed by oath or affirmation, for use as evidence in court.

I read the reference you gave and i don't see the word exception.

 

[HoughMade]

I totally disagree.

If the last day falls on a weekend or court holiday, the due date is the next business day.



Oh, and you don't get the extra days for mailing. It has to be filed by that date. There was a capital case appellate lawyer that almost learned that lesson in a very permanent way (although I think that was at the habeas level, so there were even more rules and exceptions involved).

I was being succinct...knowing that in this case, Monday the 26th is the next business day...but that was my mistake. As a lawyer who bills by the hour, when has it ever been in my best interests to be succinct?

I remember a case that talked about the 3 day rule. It had something to do with when service of a pleading by another party triggers the deadline, you get 3 additional days for service by mail but when the deadline is triggered by the entry of an order, the date of the order is the start date regardless of how the order was served....which is spectacular given the .....practices of some of the branches of the Clerk's office in Lake County.

As a young lawyer, I lived by "3 days added for service by mail." Now, almost everything we do is e-mailed.

 

[jamil]

I was being succinct...knowing that in this case, Monday the 26th is the next business day...but that was my mistake. As a lawyer who bills by the hour, when has it ever been in my best interests to be succinct?

As a young lawyer, I lived by "3 days added for service by mail." Now, almost everything we do is e-mailed.

Wait. Are you saying you get to bill INGO by the hour for posting here? I think that's what I just read.

 

[Hawkeye]

Wait. Are you saying you get to bill INGO by the hour for posting here? I think that's what I just read.

Actually, I thought lawyers billed by 6 minute (thenth of an hour) increments...

 

[HoughMade]

Wait. Are you saying you get to bill INGO by the hour for posting here? I think that's what I just read.

Did you see down in the "mileage" thread that I drive a 2007 Silverado with 100,000 miles. If I could bill for posting on INGO....

Actually, I thought lawyers billed by 6 minute (thenth of an hour) increments...

Indeed we do. I make sure everything I do takes a multiple of 6 minutes plus about 2 seconds so I can round up to the next tenth.

 

[T.Lex]

I was being succinct...

And I was being facetious.

The whole "obligation to check the docket" thing is problematic in many places in Indiana.

I heartily welcome efiling. Hamilton County has had it since the beginning of summer (I think) and it works well IMHO. Can't wait for Marion County to get it. Our 5F expenses will drop precipitously.

 

[Hawkeye]

Did you see down in the "mileage" thread that I drive a 2007 Silverado with 100,000 miles. If I could bill for posting on INGO....



Indeed we do. I make sure everything I do takes a multiple of 6 minutes plus about 2 seconds so I can round up to the next tenth.

Of course! So that enable you to bill for more than an hour, or to have time for the restroom or coffee room, or do those activiites get billed too? I know what my answer would be!

 

[Alamo]

Of course! So that enable you to bill for more than an hour, ...

This being the 12th page, we can launch in all kinds of tangential directions, right?

Wasn't there a situation awhile back where a judge was questioning a law firm's billings in a famous case because it appeared there were lawyers working 30 hour days and such?