ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett Monica Foster
Attorney General of Indiana Indianapolis, Indiana
Greg Ullrich Kevin McShane
Arthur Thaddeus Perry Indianapolis, Indiana
Deputies Attorney General
SUPREME COURT OF INDIANA
STATE OF INDIANA, ) ) Appellant (Plaintiff Below ), ) ) v. ) Cause No. 49S00-9802-DP-96 ) KERRIE D. PRICE, ) ) Appellee (Defendant Below ). )The Honorable Ruth Reichard, Judge Cause No. 49G06-9702-CF-28645
APPEAL FROM THE MARION SUPERIOR COURT
SHEPARD, Chief Justice.
The trial court agreed with Price that an execution, if
ordered, could only occur many decades in the future. It
apparently also agreed with Price that such a delay would be cruel
and unusual punishment. Accordingly, it dismissed the State's
request for the death penalty. The court certified the dismissal
for interlocutory appeal, and we accepted it.
Price has relied on a provision in the general sentencing
If, after being arrested for one (1) crime, a person commits another crime:
(1) before the date the person is discharged from probation, parole, or a term of imprisonment imposed for the first crime; or
(2) while the person is released:
(A) upon the person's own recognizance; or
(B) on bond;
the terms of imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried and sentences are imposed.
Ind. Code Ann. § 35-50-1-2(d) (West 1998).
Price notes that the General Assembly sometimes uses more specific language in legislating about incarceration, like "a fixed term of
fifty-five (55) years" for murderSee footnote
or a "minimum term of
imprisonment" for parole eligibility.See footnote
The use of the unadorned
"term of imprisonment" in the consecutive sentencing law, he says,
implies a broad application of that law to all situations involving
incarceration. A person sentenced to death, of course, is
"confined in the state prison until the date of his execution."
Ind. Code Ann. § 35-38-6-4 (West 1998).
The current version of Ind. Code § 35-50-1-2(d), as revised in
1997, is apparently the General Assembly's response to our
decisions about the limited nature of trial court authority to
order consecutive sentences conferred by earlier versions of the
We perceive nothing in the genealogy of the revised
section or in its language that suggests the result now urged by
Price. A "term of imprisonment" is a penalty under which the
convict is sent to incarceration for some period (such as two years
or five to ten years) and then released after the period has
passed. Execution is a penalty of a radically different sort. It
features incarceration only while appellate processes persist and
does not contemplate a future release into society.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
Converted from WP6.1 by the Access Indiana Information Network