Indiana Code
Ind. Code § 35-38-1-8 (2026)
Presentence report to be considered by court before sentencing; advisement of victim of right to make statement
✓ current as of May 2026
Sec. 8. (a) Except as provided in subsection (c), a defendant convicted of a felony may not be sentenced before a written presentence report is prepared by a probation officer and considered by the sentencing court. Delay of sentence until a presentence report is prepared does not constitute an indefinite postponement or suspension of sentence.
(b) A victim present at sentencing in a felony or misdemeanor case shall be advised by the court of a victim's right to make a statement concerning the crime and the sentence.
(c) A court may sentence a person convicted of a Level 6 felony without considering a written presentence report prepared by a probation officer. However, if a defendant is committed to the department of correction or a community corrections program under IC 35-38-2.6, the probation officer shall prepare a report that meets the requirements of section 9 of this chapter to be sent with the offender to the department in lieu of the presentence investigation report required by section 14 of this chapter.
As added by P.L.311-1983, SEC.3. Amended by P.L.131-1985, SEC.16; P.L.240-1991(ss2), SEC.90; P.L.104-1997, SEC.6; P.L.158-2013, SEC.395.
Notes of Decisions
Cited in 36
cases (1 in the last 5 years), 1985–2025 · leading case: Bivins v. State, 642 N.E.2d 928 (Ind. 1995).
Bivins v. State, 642 N.E.2d 928 (Ind. 1995). “At that hearing, the trial court is required to offer the victim's representative, if present, an opportunity to make a statement concerning the crime and the sentence.”
Smylie v. State, 823 N.E.2d 679 (Ind. 2005). “" Ind.Code § 35-38-1-8.. The rule that has developed in Indiana criminal sentencing is that enhanced sentences may only be imposed upon the judge's express determination of one or more aggravating factors.”
Gibson v. State, 856 N.E.2d 142 (Ind. Ct. App. 2006). “We also noted, however, that Indiana Code Section 35-38-1-8(8) still requires "a statement of the court's reasons for selecting the sentence that it imposes" if a trial court finds aggravating or mitigating circumstances.”
Harrison v. State, 644 N.E.2d 1243 (Ind. 1995). “It draws this conclusion from Ind. Code § 35-38-1-8 .5(a) (1991 Supp.), which requires a victim impact statement in all presentencing reports except capital cases.”
Marsillett v. State, 495 N.E.2d 699 (Ind. 1986). “Ind. Code § 35-38-1-8 (Burns 1979 Repl.) To delay the habitual offender proceedings in this case would have required the court to dismiss the jury and then recall it after the presentence report had been drafted.”
Pennington v. State, 821 N.E.2d 899 (Ind. Ct. App. 2005). “The court referred to Pennington's presentence report at the sentencing hearing, and Pennington's counsel informed the court that Penning ton had been given a copy of the report and had noted no errors. The presentence report contained Pennington's criminal history which clearly…”
Harris v. State, 659 N.E.2d 522 (Ind. 1995). “Ind.Code § 35-38-1-8 (1993). The trial court's statement of reasons should include the following elements: (1) identification of all significant mitigating and aggravating cireumstances; (2) the specific reason why each cireumstance is determined to be mitigating or aggravating;…”
Noble v. State, 725 N.E.2d 842 (Ind. 2000). “It seems clear to me that the judge here was "declaring himself for a lengthy sentence" in advance of receiving the pre-sentence investigation report required by Ind.Code § 35-38-1-8 (Supp.1997) and other pre-requisites to making the sentencing decision.”
Carter v. State, 724 N.E.2d 281 (Ind. Ct. App. 2000). “Pursuant to I.C. § 35-38-1-8, a presentencing report was ordered so that the trial court could consider it before accepting a guilty plea.”
Gasper v. State, 833 N.E.2d 1036 (Ind. Ct. App. 2005). “On the other hand, if the trial court finds aggravator and mitigators, concludes that they balance, and imposes the presumptive sentence, then, pursuant to I.C. § 35-38-1-8, the trial court must provide a statement of its reasons for imposing the presumptive sentence.”
Malone v. State, 660 N.E.2d 619 (Ind. Ct. App. 1996). “Malone argues that he is entitled to a new sentencing hearing because the trial court misconstrued the Class 2 Felony charges and relied upon the error in imposing an enhanced sentence.”
Lambert v. State, 643 N.E.2d 349 (Ind. 1994). “In the present appeal, the defendant asserts error in the admission of victim-impact evidence only on grounds that it is contrary to Indiana statutes concerning the probation officer's presentence investigation.”
— Ind. Code § 35-38-1-8(8) — 1 case
Gibson v. State, 856 N.E.2d 142 (Ind. Ct. App. 2006). “We also noted, however, that Indiana Code Section 35-38-1-8(8) still requires "a statement of the court's reasons for selecting the sentence that it imposes" if a trial court finds aggravating or mitigating circumstances.”
— Ind. Code § 35-38-1-8(a) — 4 cases
Gonzalez v. State, 929 N.E.2d 699 (Ind. 2010).
Dennis Knight v. State of Indiana (mem. dec.) (Ind. Ct. App. 2018).
Justin D. Adney v. State of Indiana (mem. dec.) (Ind. Ct. App. 2019).
Roger P. Orich v. State of Indiana (mem. dec.) (Ind. Ct. App. 2020).
— Ind. Code § 35-38-1-8(b) — 2 cases
Bivins v. State, 642 N.E.2d 928 (Ind. 1995). “At that hearing, the trial court is required to offer the victim's representative, if present, an opportunity to make a statement concerning the crime and the sentence.”
Griffin v. State, 583 N.E.2d 191 (Ind. Ct. App. 1991).
— Ind. Code § 35-38-1-8(c) — 1 case
Roger P. Orich v. State of Indiana (mem. dec.) (Ind. Ct. App. 2020).
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