ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JILL M. WRIGHT JEFFREY A. MODISETT
JOHN W. BAILEY Attorney General of Indiana
Matheny, Michael, Hahn & Bailey, L.L.P.
Huntington, Indiana TERESA DASHIELLL GILLER
Deputy Attorney General
COURT OF APPEALS OF INDIANA
CLINTON W. SHUMATE, )
vs. ) No. 35A05-9901-CR-25
STATE OF INDIANA, )
APPEAL FROM THE SUPERIOR COURT OF HUNTINGTON COUNTY
The Honorable Jeffrey R. Heffelfinger, Judge
Cause No. 35D01-9201-CF-12
October 27, 1999
OPINION - FOR PUBLICATION
Clinton W. Shumate appeals the revocation of his probation. Shumate raises two
issues for our review, which we restate as:
I. Whether the trial court violated the Double Jeopardy Clause by
subjecting Shumate to two probation revocation proceedings based on
the same alleged violation of probation.
II. Whether a second probation revocation proceeding is precluded by the
doctrine of res judicata.
We reverse and remand.
Shumate was convicted of dealing in a schedule I controlled substance, a Class B
felony, on June 9, 1992. He was sentenced to ten years, with four years executed and six
years to be served on probation. On January 28, 1997, a person named Clinton W. Shumate
was convicted of a misdemeanor in Hamilton County, Ohio. Based on the Ohio conviction,
the State filed a petition to revoke Shumate's probation. After a hearing, the trial court
granted the petition to revoke on December 8, 1997. Shumate appealed, and this court
reversed the probation revocation, holding that the State had not proven by a preponderance
of the evidence that the Clinton W. Shumate convicted in Ohio was the same person whose
probation was being revoked. Following the reversal of its first decision revoking probation,
the trial court held another probation revocation hearing. At the second hearing, the State
presented a photo of the Clinton W. Shumate convicted in Ohio, which revealed that the
person convicted in Ohio was the Clinton W. Shumate who was on probation in Indiana. The
trial court revoked Shumate's probation. Shumate appeals.
Shumate argues that the second probation revocation hearing violated his right to be
free from double jeopardy because it was based on the same violation of probation alleged
in the first probation revocation hearing. The Double Jeopardy Clause of the federal
constitution mandates that no person shall be subject for the same offense to be twice put
in jeopardy of life or limb. U.S. Const. amend. V.
This court has addressed the issue of whether the protection against double jeopardy
applies in the context of probation revocation. Childers v. State, 656 N.E.2d 514 (Ind. Ct.
App. 1995), trans. denied (Childers I). In Childers I, the State filed a petition to revoke the
defendant's probation due to his commission of a criminal act while on probation. Following
an outburst by the defendant at the first revocation hearing, the court revoked his probation.
Three months later, the court set aside the revocation on its own motion and reinstated the
defendant's probation. Later, the court held another hearing on the State's petition for
revocation, and again, the court revoked the defendant's probation. On appeal from that
revocation, the defendant argued that the Double Jeopardy Clause precluded a second
revocation hearing based on the same violation of probation.
We held that a violation of a condition of probation does not constitute an offense
within the purview of double jeopardy analysis, and that a second probation revocation
hearing, based on the same alleged violation that resulted in a revocation of probation that
was later set aside, did not violate the prohibition against double jeopardy. Id. at 517. In
reaching that conclusion, this court recognized that double jeopardy protection applies only
to criminal proceedings, and that probation revocation proceedings are not criminal
proceedings because violations must be proven only by a preponderance of the evidence. Id.
at 516. Further, we stated that revocation proceedings are based upon violations of
probation conditions rather than upon the commission of a crime, and that the finding of
whether a defendant has complied with these conditions is a question of fact and not an
adjudication of guilt. Id. (internal citations omitted).
Shumate challenges the holding in Childers I, and argues that because the revocation
of a person's probation subjects that person to a severe punishment, the protections against
double jeopardy should apply in probation revocation proceedings. Shumate relies on Justice
DeBruler's dissent from the denial of transfer in Childers v. State, 668 N.E.2d 1216 (Ind.
1996) (Childers II). In his dissent, Justice DeBruler pointed out that [w]hether a given
sanction or proceeding is subject to the Double Jeopardy Clause is not determined by the
State's characterization of it as either criminal or civil. Id. at 1217 (citing U.S. v. Halper,
490 U.S. 435, 446-48 (1989)). Justice DeBruler noted that in Breed v. Jones, 421 U.S. 519
(1975), the Supreme Court held that the Double Jeopardy Clause applies to juvenile
proceedings, even though they are not classified as criminal proceedings, because the
purpose of those proceedings is to determine a juvenile's guilt or innocence and, as such, the
proceedings subject juveniles to the stigma of a conviction and the deprivation of liberty for
many years. Childers II, 668 N.E.2d at 1217 (DeBruler, J., dissenting). Justice DeBruler
likened juvenile proceedings to probation revocation proceedings, and determined that
double jeopardy should apply to both, based on the potential consequences. Id. at 1218.
We acknowledge Justice DeBruler's dissent, but decline Shumate's invitation to
follow it. We hold that the Double Jeopardy Clause does not apply to probation revocation
proceedings, and therefore, that the trial court did not violate the Double Jeopardy Clause by
subjecting Shumate to a second probation revocation hearing.
Shumate contends that the revocation of his probation was barred by the doctrine of
res judicata. Res judicata bars relitigation of a claim after a final judgment has been
rendered, when the subsequent action involves the same claim between the same parties.
Hermitage Ins. Co. v. Salts, 698 N.E.2d 856, 859 (Ind. Ct. App. 1998). In order to prove that
relitigation is barred by res judicata, four elements must be satisfied: (1) the former
judgment must have been rendered by a court of competent jurisdiction; (2) the former
judgment must have been rendered on the merits; (3) the matter now in issue was or could
have been determined in the prior action; and (4) the controversy adjudicated in the former
action must have been between the same parties to the present suit or their privies. Id.
Shumate argues that all four of these elements have been satisfied. The State counters
that the reversal by this court of the first probation revocation nullified that original
judgment, and thus, there was no judgment on the merits. However, Shumate does not argue
that the first revocation is the judgment that gives rise to res judicata. Instead, he contends
that the decision by this court reversing that revocation is the final judgment on the merits
that precludes relitigation.
Neither party cited to, nor were we able to find, any Indiana case law that sets forth
the res judicata effect of an appellate court decision reversing a judgment of the trial court
based on insufficiency of the evidence. However, we did find instructive case law from
another jurisdiction. In Jimmy Martin Realty Group, Inc. v. Fameco Distributors, Inc., 386
S.E.2d 803 (S.C. Ct. App. 1989), the South Carolina Court of Appeals was faced with the
issue of whether an appellate court reversal of a lower court judgment was a judgment that
would satisfy the judgment on the merits element of res judicata. The Jimmy Martin court
held that the appellate court reversal of the trial court judgment, based on the trial court's
failure to grant the defendant's motion for a directed verdict and judgment notwithstanding
the verdict, was a final judgment on the merits, and that the appellate court decision satisfied
the judgment on the merits element of res judicata. Id. at 805. See also, 50 C.J.S.
Judgment § 726 (1997).
Likewise, in Shumate's case, this court reversed the order of the trial court revoking
Shumate's probation, based on insufficiency of the evidence. We hold that the reversal of
the trial court's judgment revoking Shumate's probation was a judgment on the merits, and
that it satisfies the judgment on the merits element of res judicata. Thus, any further
proceedings relating to the revocation of Shumate's probation, based on the same violation
of probation at issue in the first revocation proceeding, were barred by res judicata. The trial
court erred by holding a second probation hearing, and by revoking Shumate's probation.
We reverse the revocation of Shumate's probation and remand to the trial court with
instructions to vacate its order revoking probation.
Reversed and remanded.
NAJAM, J., and RUCKER, J., concur.
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