The opinion
Dissenting Opinion
Hoffman, J.
I dissent from the result reached in the majority and concurring opinions.
The judgment of the trial court should be affirmed.
Facts similar to those appearing in this case were present in the case of Thurman v. State of Indiana (1974), 162 Ind. App. 576 , 320 N.E.2d 795 , which was decided by the majority opinion of the Second District of this court. Such opinion should be controlling here.
Further, the statute here in question contemplates that the defendant be placed on probation so that he may receive treatment as a drug abuser. The pre-sentence investigation report to the trial court in this record discloses that on a previous conviction for violation of the 1935 Narcotics Act appellant-Glenn was sentenced “to 2-10 years to [the] Indiana State Reformatory” and was returned there three times for parole violations. The report further shows that the probation department “feels that the defendant [Glenn] would not be a suitable subject for probation.” Thus, the appellant is not a proper subject for probation and we should not require the trial court or the Department of Mental Health to do the useless acts required by the majority opinion herein.