ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JACK QUIRK GREGORY F. ZOELLER

Muncie, Indiana Attorney General of Indiana

MICHAEL GENE WORDEN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

MICHAEL WARREN, )

)

Appellant-Defendant, )

)

 vs. ) No. 18A02-1210-CR-870

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE DELAWARE CIRCUIT COURT

The Honorable John M. Feick, Judge

Cause No. 18C04-0603-FA-5

April 19, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge 

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

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.
2

Michael Warren (“Warren”) belatedly appeals the sanction imposed following the 

revocation of his probation. The dispositive issue is whether the trial court erred when it 

granted Warren leave to file a belated notice of appeal of the probation revocation order.

We dismiss.

Facts and Procedural History

In 2006, Warren pleaded guilty to Class B felony dealing in cocaine and Class B 

felony possession of cocaine. He was ordered to serve an aggregate sentence of twenty 

years in the Department of Correction, with eighteen years executed and two years 

suspended on each count, with the sentences to run concurrently. In 2011, Warren filed a

petition to modify his sentence. The trial court granted his petition and stayed the 

remainder of the Warren’s sentence on the condition that Warren successfully complete

both the Delaware Forensic Diversion Program and the previous terms of his petition. 

Appellant App. pp. 105-107. 

On May 11, 2012, the State filed a petition to revoke Warren’s placement in the 

Delaware Forensic Diversion Program, alleging that he was charged with possession of 

cocaine on May 4, 2012, and that he also tested positive for THC on December 12, 2011. 

On May 24, 2012, the State amended its petition, adding an allegation that Warren was in 

possession of “spice,” i.e. synthetic marijuana, on May 17, 2012. On July 26, 2012, the 

State amended its petition for a third time after Warren was charged with battery and 

driving with a suspended license, following a prior conviction for driving while 

suspended.
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On August 22, 2012, an evidentiary hearing was held. Warren admitted to the 

allegations against him in the State’s amended Petition for Revocation. On September 5, 

2012, the trial court found that Warren had violated the terms of his suspended sentence 

and ordered the remainder of Warren’s twenty-year sentence to be executed in the 

Indiana Department of Correction. Warren filed a Motion for Permission to File Belated 

Notice of Appeal on October 15, 2012. The trial court granted Warren permission to file 

a belated Notice of Appeal in an order dated October 15, 2012. Warren filed a Notice of 

Appeal on October 29, 2012. 

Discussion and Decision

The State contends that the trial court had no authority to permit Warren to file a 

belated notice of appeal. It is undisputed that the revocation of Warren’s probation was a 

final judgment and that Warren did not file either a motion to correct error or a notice of 

appeal within thirty days after that judgment. The failure to file a timely notice of appeal 

forfeits the right to appeal except as provided by Indiana Post-Conviction Rule 2. App. R. 

9 (A) (5).

Here, however, Warren sought and was granted permission to file a belated notice 

of appeal of the trial court’s order revoking his probation. Thus, the State presents a pure 

question of law regarding the construction of Post-Conviction Rule 2. We evaluate 

questions of law under a de novo standard and owe no deference to the trial court 

determinations. McCown v. State, 890 N.E.2d 752, 756 (Ind. Ct. App. 2008).

The State contends that Warren is not eligible for belated appeal under the rule. 

We must agree. “The plain definition encompasses those who possessed the right but 
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failed to file a timely direct appeal of a conviction or sentence after a trial or plea of 

guilty.” Dawson v. State, 938 N.E.2d 841, 844-845 (Ind. Ct. App. 2010), trans granted, 

opinion adopted, 943 N.E.2d 1281 (Ind. 2011). In this probation revocation hearing, 

Warren cannot and does not challenge his conviction or sentence imposed upon that 

conviction. Rather, he argues that the trial court misinterpreted the law when imposing 

the sanction for revocation of his probation. Our courts have strictly construed PostConviction Rule 2 and have held that, “belated appeals from orders revoking probation 

are not presently available pursuant to Post-Conviction Rule 2.” Dawson v. State, 943 

N.E.2d 1281 (Ind. 2011). “[T]he sanction imposed when probation is revoked does not 

qualify as a “sentence” under the Rule.” Id. Therefore, Warren is not an eligible 

defendant. 

Timeliness of appeal is jurisdictional. “The Court of Appeals lacks subject matter 

jurisdiction over appeals other than direct appeals, unless such appeals are timely 

brought.” Davis v. State, 771 N.E.2d 647, 649 (Ind. 2002) (quoting Greer v. State, 685 

N.E.2d 700, 703 (Ind. 1997)); Ind. Appellate Rule 9. Because Warren failed to file his 

appeal in a timely fashion and there is no belated appeal available to him, we dismiss for 

lack of subject matter jurisdiction. 

Dismissed.

BAKER, J., and MAY, J., concur.