FOR PUBLICATION
                                                             FILED
                                                          Feb 16 2012, 9:09 am


                                                                 CLERK
                                                               of the supreme court,
                                                               court of appeals and
                                                                      tax court




ATTORNEYS FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER                             DAVID M. SEITER
Attorney General of Indiana                    Garrison Law Firm, LLC
                                               Indianapolis, Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

STATE OF INDIANA,                              )
                                               )
       Appellant-Plaintiff,                    )
                                               )
              vs.                              )       No. 49A02-1108-CR-743
                                               )
ELVIS HOLTSCLAW,                               )
                                               )
       Appellee-Defendant.                     )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Reuben B. Hill, Judge
                           Cause No. 49F18-1004-FD-029400



                                   February 16, 2012


                              OPINION - FOR PUBLICATION


BAILEY, Judge
                                           Case Summary

        The State of Indiana appeals the denial of its motion to correct error following the trial

court’s order granting defendant Elvis Holtsclaw’s (“Holtsclaw”) motion to suppress

evidence. The parties raise two issues for our review, one of which we find dispositive:

whether the State’s appeal should be dismissed as untimely. We dismiss.

                                  Facts and Procedural History

        On April 13, 2010, after an investigation that included two chemical tests, the State

charged Holtsclaw with Operating a Motor Vehicle While Intoxicated Causing Serious

Bodily Injury, as a Class D felony;1 Operating a Motor Vehicle with a Blood Alcohol

Concentration at 0.08% or Higher Causing Serious Bodily Injury, as a Class D felony;2

Operating a Motor Vehicle While Intoxicated, as a Class A misdemeanor;3 and Operating a

Vehicle with a Blood Alcohol Content Between 0.08% and 0.15%, as a Class C

misdemeanor.4 On November 3, 2010, Holtsclaw moved to suppress the chemical tests that

supported his charges. The trial court held a hearing on Holtsclaw’s motion on February 8,

2011, and granted it on May 23, 2011. The State then filed a motion to correct error on June

21, 2011 that the trial court denied on July 25, 2011.

        On August 16, 2011, the State dismissed all charges against Holtsclaw.5 On August



1
  Ind. Code § 9-30-5-4(a)(3).
2
  I.C. § 9-30-5-4(a)(1)(B).
3
  I.C. § 9-30-5-2.
4
  I.C. § 9-30-5-1(a).
5
  The State’s motion to dismiss indicates that the trial court dismissed some of Holtsclaw’s charges when it
granted his motion to suppress. Consequently, the State’s motion to dismiss sought to dismiss “all remaining
counts” against Holtsclaw. App. 71. However, the trial court did not announce dismissal of any charges when
                                                     2
18, 2011, the State filed its notice of appeal. The State appeals from both the trial court’s

order granting Holtsclaw’s motion to suppress and the trial court’s order denying its motion

to correct error.

                                       Discussion and Decision

        Holtsclaw argues that the State’s appeal should be dismissed because the State is not

permitted to appeal the denial of a motion to correct error, and its appeal of the trial court’s

order granting the motion to suppress is untimely. The State may appeal from criminal

proceedings only when authorized by statute. State v. Gradison, 758 N.E.2d 1008, 1010 (Ind.

Ct. App. 2001); State v. Peters, 637 N.E.2d 145, 147 (Ind. Ct. App. 1994); State v. Pease,

531 N.E.2d 1207, 1208 (Ind. Ct. App. 1988). “Unless there is a specific grant of authority by

the legislature, the State cannot appeal.” Pease, 531 N.E.2d at 1208. The State’s statutory

right to appeal is in contravention of common law principles, and will therefore be strictly

construed. Id. As our supreme court has stated:

        Generally speaking, under the common law as understood and administered in
        this country, the state or United States had no right to an appeal or writ of error
        in criminal cases. It is [understood] that the reason for such a policy was built
        on the idea that, when the state in its sovereign capacity brought a citizen in its
        own tribunals, before its own officers, and in obedience to its own processes,
        and lost, its avenging hand should be stayed except in unusual cases where the
        power to appeal was expressly conferred.

State v. Sierp, 260 Ind. 57, 60, 292 N.E.2d 245, 246 (1973) (quoting 92 A.L.R. 1137)

(quotation marks omitted).




it orally granted Holtsclaw’s suppression motion on May 23, 2011, so it is unclear which charges the trial court
purportedly dismissed before the State moved to dismiss all charges.
                                                       3
       The statute governing the authority of the State to appeal in criminal matters provides:

       Appeals to the supreme court or to the court of appeals, if the court rules so
       provide, may be taken by the state in the following cases:

              (1) From an order granting a motion to dismiss an indictment or
              information.

              (2) From an order or judgment for the defendant, upon his motion for
              discharge because of delay of his trial not caused by his act, or
              upon his plea of former jeopardy, presented and ruled upon prior to
              trial.

              (3) From an order granting a motion to correct errors.

              (4) Upon a question reserved by the state, if the defendant is acquitted.

              (5) From an order granting a motion to suppress evidence, if the
              ultimate effect of the order is to preclude further prosecution.

              (6) From any interlocutory order if the trial court certifies and the
              court on appeal or a judge thereof finds on petition that:

                     (A) the appellant will suffer substantial expense, damage, or
                     injury if the order is erroneous and the determination thereof
                     is withheld until after judgment;

                     (B) the order involves a substantial question of law, the early
                     determination of which will promote a more orderly disposition
                     of the case; or

                     (C) the remedy by appeal after judgment is otherwise inadequate.

I.C. § 35-38-4-2 (emphasis supplied).

       Here, the trial court granted Holtsclaw’s motion to suppress on May 23, 2011, which

eventually led to the dismissal of all charges. This order was therefore a final judgment that

the State could have appealed because “[a] trial court’s grant of a defendant’s motion to


                                              4
suppress is ‘tantamount to a dismissal of the action’ and is ‘appealable as a final judgment

under subsection 5’ of Indiana Code Section 35-38-4-2.” State v. Hunter, 904 N.E.2d 371,

373 (Ind. Ct. App. 2009) (quoting State v. Snider, 892 N.E.2d 657, 658 (Ind. Ct. App. 2008)).

The precise timing of the dismissal of Holtsclaw’s charges makes no difference because

“[w]hether there is a final, appealable order is a question of law and not delegated or left to

the discretion of a party.” Id.

        Rather than immediately appealing the suppression of evidence, the State opted to file

a motion to correct error, and when that motion was denied, the State sought to appeal both

the denial of the motion to correct error and the order granting the motion to suppress.

However, the language of Indiana Code section 35-38-4-2 only confers on the State the

authority to appeal an order granting a motion to correct error. It does not confer the

authority to appeal from the denial of a motion to correct error. When interpreting a statute,

“we will not read into the statute that which is not the expressed intent of the legislature” and

“it is just as important to recognize what the statute does not say as to recognize what it does

say.”    N.D.F. v. State, 775 N.E.2d 1085, 1088 (Ind. 2002). Because we must strictly

construe the statute, we cannot conclude that the State has the authority to appeal the denial

of its motion to correct error in this case.6

         Without this authority, the State had to file its notice of appeal within thirty days of

the trial court’s suppression order. See Ind. App. R. 9(A)(1). The State correctly points out


6
 There are some instances where the filing of a motion to correct error is a prerequisite for appeal. See Ind. Tr.
R. 59(A). We are not presented with one of those instances here, and therefore express no opinion on the
State’s authority to appeal from the denial of a motion to correct error in those cases.
                                                        5
that “if any party files a timely motion to correct error, a Notice of Appeal must be filed

within thirty (30) days after the court’s ruling on such motion is noted in the Chronological

Case Summary or thirty (30) days after the motion is deemed denied under Trial Rule 53.3,

whichever occurs first.” Id. However, we disagree that this provision “triggered anew” the

thirty day period in which the State could appeal the trial court’s suppression order.

Appellant’s Reply Br. p. 4. The thirty additional days provided for in Appellate Rule 9(A)

refers to the additional time a party has to appeal the trial court’s order on the motion to

correct error. As we have already discussed, the State has no authority to appeal the denial of

its motion to correct error in this case.

       The trial court granted Holtsclaw’s motion to suppress on May 23, 2011. The State

filed its notice of appeal of this order on August 18, 2011, well after the thirty day deadline.

The State’s appeal is therefore untimely and must be dismissed. See Ind. App. R. 9(A)(5)

(“Unless the Notice of Appeal is timely filed, the right to appeal shall be forfeited”).

       Dismissed.

DARDEN, J., concurs.

BAKER, J., dissents with opinion.




                                               6
                              IN THE
                    COURT OF APPEALS OF INDIANA

STATE OF INDIANA,                                  )
                                                   )
       Appellant-Plaintiff,                        )
                                                   )
              vs.                                  )      No. 49A02-1108-CR-743
                                                   )
ELVIS HOLTSCLAW,                                   )
                                                   )
       Appellee-Defendant.                         )


BAKER, Judge, dissenting


       I respectfully dissent, and part ways with the majority’s decision to dismiss this

appeal. More specifically, I cannot agree that Indiana Code section 35-38-4-2 precludes the

State from appealing the trial court’s denial of its motion to correct error in this instance.

       Indeed, Indiana Code section 35-38-4-2(5) allows the State to appeal from an order

suppressing evidence if that ruling effectively precludes further prosecution. However, there

is nothing in the statute that requires the State to pursue the appeal through the interlocutory

process. In other words, there is no prohibition in the statute that prevents the State from

seeking redress of the trial court’s suppression ruling by way of a motion to correct error.

State v. Hunter, 904 N.E.2d 371, 373 (Ind. Ct. App. 2009).


                                               7
       In accordance with Indiana Appellate Rule 9, an appeal is initiated when a Notice of

Appeal is filed within thirty days of a final judgment. However, that period is tolled “if any

party files a timely motion to correct error.” Id. Moreover, when a motion to correct error is

filed, the time to file a Notice of Appeal does not commence until the motion to correct error

is either ruled upon or deemed denied.

       Here, the basis for the State’s appeal is the final judgment with regard to the trial

court’s granting of the motion to suppress because it effectively ended the prosecution

against Holtsclaw. Rather than filing an immediate appeal, the State sought to resolve the

issue by filing a motion to correct error. And once the trial court denied the motion to correct

error, it is my view that the time for pursuing the appeal began anew, and a Notice of Appeal

was required within thirty days to commence the appeal. That is precisely what the State did

in this instance when it filed the Notice of Appeal on August 19, 2011, after the trial court

had denied the motion to correct error on July 25. Appellant’s App. p. 8, 47, 70.

       I see nothing in Indiana Code section 35-38-4-2 stating—or even implying—that the

language of Appellate Rule 9 should not apply to appeals initiated by the State.7 In my view,

foreclosing the State from seeking redress through a more direct route, such as filing a

motion to correct error in circumstances such as these, is simply not a sound application of

the language embodied in Indiana Code section 35-38-4-2. Moreover, I do not believe that

our General Assembly intended the result reached by the majority in this circumstance when



7
 In any event, our Supreme Court’s rules of procedure prevail over statutes. State ex rel. Crawford v.
Delaware Cir. Ct., 655 N.E.2d 499, 500 (Ind. 1995).
                                                  8
construing the provisions of Indiana Code section 35-38-4-2 and our court rules. Such a

holding effectively elevates form over substance, which we are loathe to do. State ex. rel

Atty. Gen. v. Lake Sup. Ct., 820 N.E.2d 1240, 1252 (Ind. 2005).

        In short, I do not believe that this case must be dismissed in light of the State’s filing

of its Notice of Appeal on August 19, 2011. I vote to reinstate the appeal and address the

State’s claims on their merits regarding the propriety of the trial court’s grant of Holtsclaw’s

motion to suppress.




                                                9
