Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be                                           Sep 20 2013, 5:32 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

APPELLANT PRO SE:                                 ATTORNEYS FOR APPELLEE:

WILLIAM TEMPLE                                    GREGORY F. ZOELLER
New Castle, Indiana                               Attorney General of Indiana

                                                  KATHY BRADLEY
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

WILLIAM TEMPLE,                                   )
                                                  )
       Appellant,                                 )
                                                  )
       vs.                                        )        No. 33A01-1211-MI-533
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee.                                  )


                      APPEAL FROM THE HENRY CIRCUIT COURT
                         The Honorable Kit C. Dean Crane, Judge
                             Cause No. 33C02-1209-MI-110



                                      September 20, 2013


      MEMORANDUM DECISION ON REHEARING – NOT FOR PUBLICATION


NAJAM, Judge
       The State of Indiana has filed a petition for rehearing asking that we address an

alleged error in our memorandum decision. See Temple v. State, No. 33A01-1211-MI-

533 (Ind. Ct. App. 2013). We grant the State’s petition for rehearing for the limited

purpose of addressing a single issue, namely, whether the trial court may address

Temple’s petition for writ of habeas corpus (and treat it as a post-conviction petition) or

whether the trial court must transfer the petition to the court where Temple was convicted

and sentenced. Upon review, we agree with the State that the trial court may address

Temple’s petition and there is no need to transfer the matter to a different trial court.

       The State is correct that our reliance on Martin v. State, 901 N.E.2d 645, 647 (Ind.

Ct. App. 2009), in our memorandum decision was misplaced. Again, the remedy for an

unlawful revocation of parole is filing a petition for post-conviction relief. See Ind. Post-

Conviction Rule 1.1(a)(5); Hardley v. State, 893 N.E.2d 740, 743 (Ind. Ct. App. 2008).

Consequently, rather than simply dismissing Temple’s petition for writ of habeas corpus,

the trial court should have treated it as a petition for post-conviction relief. See, e.g.,

Hawkins v. Jenkins, 268 Ind. 137, 374 N.E.2d 496, 499 (1978). And in Hawkins, our

supreme court observed that where, as here,1 a defendant does not challenge the validity

of his conviction or sentence, there is no need to transfer a post-conviction petition to the

trial court where the conviction or sentence was entered. Id. at 498. Thus, while we

reverse the trial court’s dismissal of Temple’s petition for writ of habeas corpus and

remand with instructions to consider his petition in accordance with Indiana Rule of Post-



       1
            As we observed in our memorandum decision, Temple appears to challenge the sufficiency of
the evidence supporting the revocation of his parole, and he appears to allege due process violations
related to that proceeding.
                                                 2
Conviction Relief 1.1(a)(5), the trial court shall not transfer this matter to the Marion

Superior Court. In all other respects, we affirm our memorandum decision.

      Affirmed on rehearing.

BAILEY, J., and BARNES, J., concur.




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