MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
                                                                         Nov 26 2018, 7:40 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Andrew R. Falk                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Caroline G. Templeton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Victoria Marie Tidwell,                                 November 26, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1185
        v.                                              Appeal from the Hendricks
                                                        Superior Court
State of Indiana,                                       The Honorable Rhett Stuard,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        32D02-1706-CM-752



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1185 | November 26, 2018                 Page 1 of 5
[1]   Victoria Marie Tidwell appeals her convictions for dog bite liability resulting in

      injury and her convictions for harboring a non-immunized dog. Tidwell raises

      three issues including whether the State may bring a claim for restitution upon

      remand, whether the State presented sufficient evidence to sustain her

      convictions for dog bite liability resulting in injury, and whether double

      jeopardy precludes her convictions for harboring a non-immunized dog. We

      remand.


                                      Facts and Procedural History

[2]   On June 2, 2017, the State charged Tidwell with three counts of dog bite

      liability resulting in injury as class C misdemeanors as Counts I, II, and III.

      The State later amended Count I to a class A misdemeanor and added three

      counts of harboring a non-immunized dog as class B misdemeanors.


[3]   On April 6, 2018, the court held a bench trial and found Tidwell guilty as

      charged. The court asked the parties if there was any reason it should not

      proceed directly to sentencing, and counsel for each party indicated that there

      was no reason. The court sentenced Tidwell to concurrent sentences of ninety

      days for each count, suspended all ninety days, and placed her on probation for

      365 days. The prosecutor asked for a hearing on restitution. Upon questioning

      by the court, the prosecutor indicated that he could participate in a hearing

      within a month. Tidwell’s counsel stated in part that “even if restitution is

      entered, I don’t believe she has the ability to make the – make the payments on

      the restitution.” Transcript Volume II at 82. After some discussion, the court

      stated: “What we’ll probably have to do, [Tidwell’s counsel], is just make it a
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1185 | November 26, 2018   Page 2 of 5
      civil judgment at that point, okay?” Id. The court asked Tidwell’s counsel if

      she could be at a hearing on April 30th, and Tidwell’s counsel responded

      affirmatively. The court scheduled a restitution hearing for April 30, 2018. The

      court informed Tidwell that she had the right to appeal the finding of guilt and

      sentence and must file a notice of appeal within thirty days. The court

      appointed the Hendricks County Public Defender’s Office to represent her for

      purposes of appeal. That same day, the court entered a Judgment of

      Conviction, Sentencing Order and Order of Commitment which stated in part:

      “Hearing on Restitution Set 4-30-2018 at 10:30 A.M.” Appellant’s Appendix

      Volume II at 23 (capitalization omitted).


[4]   On April 30, 2018, the court held a hearing on restitution. After the

      presentation of evidence, Tidwell’s counsel stated in part that “this case is up on

      appeal” and requested that any restitution be stayed pending disposition of that

      appeal.1 Transcript Volume II at 102. The court indicated that it was not sure

      it had jurisdiction to enter restitution “at this point” and stated:


               We entered sentencing and – and there’s a case Wilson versus
               State, 688 N.E.[2d] 1293, that tells me that if I don’t give
               restitution at the time of sentencing, I – the only way I can hold it
               open is if there’s a specific, uh, order that I – where I say, we’re
               going to set this. Uh, I don’t know that I did that. I – I know we
               mentioned it at sentencing. I know we talked about it – asked
               you about, uh, restitution, you said you’d like to come back at a
               different day and do that and I – you know I’d have to go back



      1
       As pointed out by the State, the appeal to which Tidwell’s counsel was referring is unclear as the notice of
      appeal which initiated this appeal was not filed until May 7, 2018.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1185 | November 26, 2018                   Page 3 of 5
              and listen to exactly what was said. Uh, but let’s assume that I
              did say we’re going to – we’re going to keep sentencing open for
              another day which would, I think, under the Wilson case, might
              preserve it for today’s date, uh, I think that the best thing for us to
              do at this point is stay any award of damages – not damages,
              restitution, uh, in this case till the appeal is complete and see
              what happens.


      Id. at 103-104. On May 7, 2018, Tidwell filed a notice of appeal.


                                                  Discussion

[5]   To the extent the trial court cited Wilson v. State, 688 N.E.2d 1293 (Ind. Ct.

      App. 1997), and Tidwell mentions it on appeal, we note that the trial court’s

      sentencing order in that case did not purport to retain any continuing

      jurisdiction over Wilson and the trial court lost its authority to modify Wilson’s

      sentence. Unlike in Wilson, Tidwell’s counsel did not object to the holding of a

      hearing on restitution when it was scheduled at the April 6, 2018 bench trial

      and the trial court’s April 6, 2018 sentencing order explicitly states that a

      restitution hearing was scheduled for April 30, 2018. Under these

      circumstances and in the interest of judicial efficiency, we retain jurisdiction

      and remand for the trial court to issue an order regarding the State’s request for

      restitution. After the trial court issues its order on restitution, we will address

      Tidwell’s issues on the merits. Tidwell may file a revised brief, without a new

      notice of appeal, within thirty days of the issuance of the trial court’s order on

      restitution and the State may file a revised brief within forty-five days of the trial

      court’s order or thirty days of Tidwell’s revised brief, whichever is later.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1185 | November 26, 2018   Page 4 of 5
                                                  Conclusion

[6]   For the foregoing reasons, we remand for further proceedings consistent with

      this opinion.


[7]   Remanded.


      Altice, J., and Tavitas, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1185 | November 26, 2018   Page 5 of 5
