                                                              Oct 29 2013, 5:40 am




FOR PUBLICATION


APPELLANT PRO SE:                        ATTORNEY FOR APPELLEE:

JASON E. MORALES                         GREGORY F. ZOELLER
Carlisle, Indiana                        Attorney General of Indiana

                                         ELLEN H. MEILAENDER
                                         Deputy Attorney General
                                         Indianapolis, Indiana


                            IN THE
                  COURT OF APPEALS OF INDIANA

JASON E. MORALES,                        )
                                         )
     Appellant-Petitioner,               )
                                         )
            vs.                          )       No. 82A05-1302-CR-72
                                         )
STATE OF INDIANA                         )
                                         )
     Appellee-Respondent.                )


              APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                      The Honorable Kelli E. Fink, Magistrate
                          Cause No. 82C01-0902-FB-150



                              October 29, 2013

            OPINION GRANTING REHEARING – FOR PUBLICATION


BAKER, Judge
       In this case, appellant-petitioner Jason E. Morales appealed the trial court’s

decision denying his motion for judicial review of the admissions criteria for the

Vanderburgh County Post-Conviction Forensic Diversion Program (the Program). This

Court concluded, in part, that “because Morales never applied for acceptance into the

Program and was thus never rejected from consideration by the Program,” there was no

final administrative action for the trial court to review, and Morales’s petition for judicial

review was not proper. Slip op. at 5.

       Morales now petitions for rehearing, vehemently arguing that we mistakenly

determined that he had not applied for acceptance into the Program and concluded that

there was no final administrative action to review. Pet. p. 4. Morales contends that he

did apply to the Program through filing a motion in the trial court for placement in the

Program. The State has not filed a response.

       Although Morales petitioned the trial court to be placed into the Program and the

probation department investigated whether he satisfied its criteria, this action is not the

same as Morales applying directly to the Program. Indeed, the Program did not deny

Morales’s admission.     Rather, the Program informed the probation department that

Morales did not satisfy the criteria for acceptance. To Morales, the result is the same, but

before a court can review a final administrative action, there must be an agency action for

the court to review. Here, the agency administering the Program did not act, but merely



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informed the probation department that based on the information that it had been

provided, Morales did not satisfy the necessary criteria for acceptance into the Program.

       It appears that Morales really wanted a declaratory judgment that the Program’s

criteria excluded too many offenders, particularly sex offenders. There are procedures to

seek a declaratory judgment, but Morales did not pursue them.

       Morales’s petition for rehearing is granted for the limited purpose of clarification

as to the specific issue discussed above. Otherwise, we stand by our previous opinion.

MATHIAS, J., concurs.

MAY, J., would deny the petition for rehearing.




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