Citations Affected: IC 35-38-2-2.3 ; IC 35-47; IC 35-50-2-9 .
Synopsis: Firearms and murder sentences. Prohibits the issuance of a
license to carry a handgun to a person who is on probation or parole.
Makes it a Class A misdemeanor for a person who is on probation or
parole to knowingly or intentionally possess a firearm. Makes the fact
that: (1) a victim of a murder was a corrections employee, probation
officer, parole officer, community corrections worker, home detention
officer, firefighter, judge, or law enforcement officer; and (2) the
murder was motivated by the victim's official status or former official
status; an aggravating circumstance when a court is considering
sentences for murder.
Effective: July 1, 2001.
January 11, 2001, read first time and referred to Committee on Courts and Criminal Code.
A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
or will be able to pay, and shall fix the manner of performance.
(6) Execute a repayment agreement with the appropriate governmental entity to repay the full amount of public relief or assistance wrongfully received, and make repayments according to a repayment schedule set out in the agreement.
(7) Pay a fine authorized by IC 35-50.
(8) Refrain from possessing a
firearm or other deadly weapon
other than a firearm unless granted written permission by the
court or the person's probation officer.
(9) Report to a probation officer at reasonable times as directed by the court or the probation officer.
(10) Permit the person's probation officer to visit the person at reasonable times at the person's home or elsewhere.
(11) Remain within the jurisdiction of the court, unless granted permission to leave by the court or by the person's probation officer.
(12) Answer all reasonable inquiries by the court or the person's probation officer and promptly notify the court or probation officer of any change in address or employment.
(13) Perform uncompensated work that benefits the community.
(14) Satisfy other conditions reasonably related to the person's rehabilitation.
(15) Undergo home detention under IC 35-38-2.5.
(16) Undergo a laboratory test or series of tests approved by the state department of health to detect and confirm the presence of the human immunodeficiency virus (HIV) antigen or antibodies to the human immunodeficiency virus (HIV), if:
(A) the person had been convicted of a sex crime listed in IC 35-38-1-7.1 (e) and the crime created an epidemiologically demonstrated risk of transmission of the human immunodeficiency virus (HIV) as described in IC 35-38-1-7.1 (b)(8); or
(B) the person had been convicted of an offense related to a controlled substance listed in IC 35-38-1-7.1 (f) and the offense involved the conditions described in IC 35-38-1-7.1 (b)(9)(A).
(17) Refrain from any direct or indirect contact with an individual.
(18) Execute a repayment agreement with the appropriate governmental entity or with a person for reasonable costs incurred because of the taking, detention, or return of a missing child (as defined in IC 10-1-7-2 ).
(19) Periodically undergo a laboratory chemical test (as defined
) or series of chemical tests as specified by the
court to detect and confirm the presence of a controlled substance
(as defined in
). The person on probation is
responsible for any charges resulting from a test and shall have
the results of any test under this subdivision reported to the
person's probation officer by the laboratory.
(20) If the person was confined in a penal facility, execute a reimbursement plan as directed by the court and make repayments under the plan to the authority that operates the penal facility for all or part of the costs of the person's confinement in the penal facility. The court shall fix an amount that:
(A) may not exceed an amount the person can or will be able to pay;
(B) does not harm the person's ability to reasonably be self supporting or to reasonably support any dependent of the person; and
(C) takes into consideration and gives priority to any other restitution, reparation, repayment, or fine the person is required to pay under this section.
(b) When a person is placed on probation, the person shall be given a written statement specifying:
(1) the conditions of probation; and
(2) that if the person violates a condition of probation during the probationary period, a petition to revoke probation may be filed before the earlier of the following:
(A) One (1) year after the termination of probation.
(B) Forty-five (45) days after the state receives notice of the violation.
(c) As a condition of probation, the court may require that the person serve a term of imprisonment in an appropriate facility at the time or intervals (consecutive or intermittent) within the period of probation the court determines.
(d) Intermittent service may be required only for a term of not more than sixty (60) days and must be served in the county or local penal facility. The intermittent term is computed on the basis of the actual days spent in confinement and shall be completed within one (1) year. A person does not earn credit time while serving an intermittent term of imprisonment under this subsection. When the court orders intermittent service, the court shall state:
(1) the term of imprisonment;
(2) the days or parts of days during which a person is to be confined; and
criminal record, if any, and convictions (minor traffic offenses
excepted), age, race, sex, nationality, date of birth, citizenship, height,
weight, build, color of hair, color of eyes, scars and marks, whether the
applicant has previously held an Indiana license to carry a handgun
and, if so, the serial number of the license and year issued, whether his
license has ever been suspended or revoked, and if so, the year and
reason for the suspension or revocation, and the applicant's reason for
desiring a license. The officer to whom the application is made shall
conduct an investigation into the applicant's official records and verify
thereby the applicant's character and reputation, and shall in addition
verify for accuracy the information contained in the application, and
shall forward this information together with his recommendation for
approval or disapproval and one (1) set of legible and classifiable
fingerprints of the applicant to the superintendent.
(d) The superintendent may make whatever further investigation he deems necessary. Whenever disapproval is recommended, the officer to whom the application is made shall provide the superintendent and the applicant with his complete and specific reasons, in writing, for the recommendation of disapproval.
(e) If it appears to the superintendent that the applicant has a proper reason for carrying a handgun and is of good character and reputation and a proper person to be so licensed, he shall issue to the applicant a qualified or an unlimited license to carry any handgun lawfully possessed by the applicant. The original license shall be delivered to the licensee. A copy shall be delivered to the officer to whom the application for license was made. A copy shall be retained by the superintendent for at least four (4) years. This license shall be valid for a period of four (4) years from the date of issue. The license of police officers, sheriffs or their deputies, and law enforcement officers of the United States government who have been honorably retired by a lawfully created pension board or its equivalent after twenty (20) or more years of service, shall be valid for the life of such individuals. However, such lifetime licenses are automatically revoked if the license holder does not remain a proper person.
(f) A license to carry a handgun shall not be issued to any person who:
(1) has been convicted of a felony;
(2) is under eighteen (18) years of age;
(3) is under twenty-three (23) years of age if the person has been adjudicated a delinquent child for an act that would be a felony if committed by an adult;
(4) has been arrested for a Class A or Class B felony, or any other
felony that was committed while armed with a deadly weapon or
that involved the use of violence, if a court has found probable
cause to believe that the person committed the offense charged;
(5) is on probation or parole for committing:
(A) a crime; or
(B) an act that would be a crime if committed by an adult.
In the case of an arrest under subdivision (4), a license to carry a handgun may be issued to a person who has been acquitted of the specific offense charged or if the charges for the specific offense are dismissed. The superintendent shall prescribe all forms to be used in connection with the administration of this chapter.
(g) If the law enforcement agency that charges a fee under subsection (b) is a city or town law enforcement agency, the fee shall be deposited in the law enforcement continuing education fund established under IC 5-2-8-2.
or the judgment was entered on a guilty plea, the court alone shall
conduct the sentencing hearing. The jury or the court may consider all
the evidence introduced at the trial stage of the proceedings, together
with new evidence presented at the sentencing hearing. The court shall
instruct the jury concerning the statutory penalties for murder and any
other offenses for which the defendant was convicted, the potential for
consecutive or concurrent sentencing, and the availability of good time
credit and clemency. The defendant may present any additional
evidence relevant to:
(1) the aggravating circumstances alleged; or
(2) any of the mitigating circumstances listed in subsection (c).
(e) Except as provided by IC 35-36-9 , if the hearing is by jury, the jury shall recommend to the court whether the death penalty or life imprisonment without parole, or neither, should be imposed. The jury may recommend:
(1) the death penalty; or
(2) life imprisonment without parole;
only if it makes the findings described in subsection (k). The court shall make the final determination of the sentence, after considering the jury's recommendation, and the sentence shall be based on the same standards that the jury was required to consider. The court is not bound by the jury's recommendation. In making the final determination of the sentence after receiving the jury's recommendation, the court may receive evidence of the crime's impact on members of the victim's family.
(f) If a jury is unable to agree on a sentence recommendation after reasonable deliberations, the court shall discharge the jury and proceed as if the hearing had been to the court alone.
(g) If the hearing is to the court alone, except as provided by IC 35-36-9 , the court shall:
(1) sentence the defendant to death; or
(2) impose a term of life imprisonment without parole;
only if it makes the findings described in subsection (k).
(h) If a court sentences a defendant to death, the court shall order the defendant's execution to be carried out not later than one (1) year and one (1) day after the date the defendant was convicted. The supreme court has exclusive jurisdiction to stay the execution of a death sentence. If the supreme court stays the execution of a death sentence, the supreme court shall order a new date for the defendant's execution.
(i) If a person sentenced to death by a court files a petition for post-conviction relief, the court, not later than ninety (90) days after the
date the petition is filed, shall set a date to hold a hearing to consider
the petition. If a court does not, within the ninety (90) day period, set
the date to hold the hearing to consider the petition, the court's failure
to set the hearing date is not a basis for additional post-conviction
relief. The attorney general shall answer the petition for post-conviction
relief on behalf of the state. At the request of the attorney general, a
prosecuting attorney shall assist the attorney general. The court shall
enter written findings of fact and conclusions of law concerning the
petition not later than ninety (90) days after the date the hearing
concludes. However, if the court determines that the petition is without
merit, the court may dismiss the petition within ninety (90) days
without conducting a hearing under this subsection.
(j) A death sentence is subject to automatic review by the supreme court. The review, which shall be heard under rules adopted by the supreme court, shall be given priority over all other cases. The supreme court's review must take into consideration all claims that the:
(1) conviction or sentence was in violation of the:
(A) Constitution of the State of Indiana; or
(B) Constitution of the United States;
(2) sentencing court was without jurisdiction to impose a sentence; and
(A) exceeds the maximum sentence authorized by law; or
(B) is otherwise erroneous.
If the supreme court cannot complete its review by the date set by the sentencing court for the defendant's execution under subsection (h), the supreme court shall stay the execution of the death sentence and set a new date to carry out the defendant's execution.
(k) Before a sentence may be imposed under this section, the jury, in a proceeding under subsection (e), or the court, in a proceeding under subsection (g), must find that:
(1) the state has proved beyond a reasonable doubt that at least one (1) of the aggravating circumstances listed in subsection (b) exists; and
(2) any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances.