Sec. 2. (a) Appeals to the supreme court or to the court
of appeals, as provided by court rules, may be taken by the state as of
right in the following cases:
(1) From an order granting a motion to dismiss one (1) or more
counts of an indictment or information.
(2) From an order granting a motion to discharge a defendant
before trial for any reason, including delay commencing trial or
after the defendant's plea of former jeopardy.
(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 of
one (1) or more counts of an information or indictment.
(b) The state may appeal an interlocutory order to the supreme court
or to the court of appeals, as provided by court rules, if the trial court
certifies the appeal and the court on appeal finds that:
(1) the state will suffer substantial expense, damage, or injury if
the order is erroneous and the determination thereof is withheld
until after judgment;
(2) the order involves a substantial question of law, the early
determination of which will promote a more orderly disposition
of the case; or
(3) the remedy by appeal after judgment is otherwise inadequate.
(c) An interlocutory order that may be appealed by the state under
subsection (b) includes but is not limited to:
(1) any order granting a motion to suppress evidence that is
substantially important to the prosecution and does not have the
ultimate effect of precluding further prosecution; and
(2) any discovery order claimed to violate a court rule, statute, or
case law.
As added by P.L.311-1983, SEC.3. Amended by P.L.110-2015,
SEC.2; P.L.112-2021, SEC.1.
Notes of Decisions
McCullough v. State, 888 N.E.2d 1272 (Ind. Ct. App. 2008).
· cites it 42× “" Ind.Code § 35-38-4-2. This is broad language, and I believe it applies to any circumstance in which the State is prosecuting an appeal regardless of whether the State is initiating an appeal or cross-appealing.”
State v. Renzulli, 935 N.E.2d 200 (Ind. Ct. App. 2010).
· cites it 52× “Ind.Code § 35-38-4-2 (2004) (emphasis added).”
State of Indiana v. James Parrott, 69 N.E.3d 535 (Ind. Ct. App. 2017).
· cites it 10× “Indiana Code Section 35-38-4-2 provides that the State may take appeals to this Court in certain cases, including (5) From an order granting a motion to suppress evidence, if the ultimate effect of the order is to preclude further prosecution of one (1) or more counts of an…”
Hardley v. State, 905 N.E.2d 399 (Ind. 2009).
· cites it 8× “Ind.Code § 35-38-4-2. [5] In McCullough v.”
State v. Aynes, 715 N.E.2d 945 (Ind. Ct. App. 1999).
· cites it 12× “” Ind.Code § 35-38-4-2(5). It follows that the State’s initiation of the appeal constitutes a “judicial admission” that prosecution cannot proceed without the suppressed evidence.”
Stephens v. State, 818 N.E.2d 936 (Ind. 2004).
· cites it 4× “I.C. § 35-38-4-2. 4 . Defendant also claims that the State waived this argument by failing to raise it in the trial court.”
State v. Holtsclaw, 961 N.E.2d 1026 (Ind. Ct. App. 2012).
· cites it 24× “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.”
Daquan Whitener v. State of Indiana, 982 N.E.2d 439 (Ind. Ct. App. 2013).
· cites it 14× “Specifically, Ind.Code § 35-38-4-2, titled “Appeals by state as provided by court rules for certain cases,” provides that appeals to this court or the Indiana Supreme Court may be taken by the State in the following cases: (1) From an order granting a motion to dismiss an…”
State v. Renzulli, 958 N.E.2d 1143 (Ind. 2011).
· cites it 4× “Standard of Review Pursuant to Indiana Code section 35-38-4-2(5), the State appeals from the suppression of evidence, which effectively precludes further prosecution.”
Moore v. State, 882 N.E.2d 788 (Ind. Ct. App. 2008).
· cites it 8× “The State's argument regarding acquittal removed its cross-appeal from the portion of Ind.Code § 35-38-4-2 relied on by the majority, but the State has not provided citation or argument demonstrating it was otherwise authorized to appeal the trial court's decision not to…”
State v. Peters, 637 N.E.2d 145 (Ind. Ct. App. 1994).
· cites it 10× “However, in 1983 the legislature enacted Ind.Code § 35-38-4-2(6), incorporating the interlocutory appeal provisions of A.”
— Ind. Code § 35-38-4-2(1) — 17 cases
— Ind. Code § 35-38-4-2(3) — 2 cases
State v. Renzulli, 935 N.E.2d 200 (Ind. Ct. App. 2010).
“Ind.Code § 35-38-4-2 (2004) (emphasis added).”
— Ind. Code § 35-38-4-2(4) — 23 cases
Moore v. State, 882 N.E.2d 788 (Ind. Ct. App. 2008).
“The State's argument regarding acquittal removed its cross-appeal from the portion of Ind.Code § 35-38-4-2 relied on by the majority, but the State has not provided citation or argument demonstrating it was otherwise authorized to appeal the trial court's decision not to…”
— Ind. Code § 35-38-4-2(5) — 61 cases
State of Indiana v. James Parrott, 69 N.E.3d 535 (Ind. Ct. App. 2017).
“Indiana Code Section 35-38-4-2 provides that the State may take appeals to this Court in certain cases, including (5) From an order granting a motion to suppress evidence, if the ultimate effect of the order is to preclude further prosecution of one (1) or more counts of an…”
State v. Aynes, 715 N.E.2d 945 (Ind. Ct. App. 1999).
“” Ind.Code § 35-38-4-2(5). It follows that the State’s initiation of the appeal constitutes a “judicial admission” that prosecution cannot proceed without the suppressed evidence.”
State v. Renzulli, 958 N.E.2d 1143 (Ind. 2011).
“Standard of Review Pursuant to Indiana Code section 35-38-4-2(5), the State appeals from the suppression of evidence, which effectively precludes further prosecution.”
— Ind. Code § 35-38-4-2(6) — 8 cases
State v. Peters, 637 N.E.2d 145 (Ind. Ct. App. 1994).
“However, in 1983 the legislature enacted Ind.Code § 35-38-4-2(6), incorporating the interlocutory appeal provisions of A.”
— Ind. Code § 35-38-4-2(8) — 2 cases
State v. Renzulli, 935 N.E.2d 200 (Ind. Ct. App. 2010).
“Ind.Code § 35-38-4-2 (2004) (emphasis added).”
— Ind. Code § 35-38-4-2(a)(1) — 2 cases
— Ind. Code § 35-38-4-2(a)(2) — 1 case
— Ind. Code § 35-38-4-2(a)(5) — 1 case
— Ind. Code § 35-38-4-2(b) — 1 case
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