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Appeals court rehearing affirms serious violent felon conviction

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An Indiana Supreme Court ruling that a conviction of possession of a firearm by a serious violent felon cannot have a sentence enhanced under the habitual offender statute does not apply when the enhancement came for a separate conviction, the Indiana Court of Appeals held Monday.

In  Darryl Shepherd v. State of Indiana, 49A05-1111-CR-600, the court on rehearing affirmed its prior decision on Shepherd’s conviction of possession of a firearm by a serious violent felon.

The court held its petition for rehearing in abeyance until the Indiana Supreme Court ruled in Dye v. State, 972 N.E.2d 853, 855, 858 (Ind. 2012). The justices determined in Dye that the SVF conviction is impermissible only when the same underlying offense or chain of offenses is used to establish the SVF and the habitual offender status.

Shepherd also raises the issue for the first time on appeal, Judge Edward Najam wrote for the panel, thus waiving it.

“Shepherd’s waiver notwithstanding, our review of the record available on direct appeal demonstrates that his SVF status was based on a 1993 conviction for dealing in cocaine, as a Class B felony, while his habitual offender enhancement was based on a 1991 Class C felony conviction for battery and a 2008 Class D felony conviction for intimidation,” Najam wrote. “There is no reason for this court to believe that any one of those three underlying felonies is in any way related to another. Accordingly, we grant Shepherd’s petition for rehearing and affirm our prior decision.”


 

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  1. OK, now do something about this preverted anacronism

  2. William Hartley prosecutor of Wabash county constantly violates people rights. Withholds statement's, is bias towards certain people. His actions have ruined lives and families. In this county you question him or go out of town for a lawyer,he finds a way to make things worse for you. Unfair,biased and crooked.

  3. why is the State trying to play GOD? Automatic sealing of a record is immoral. People should have the right to decide how to handle a record. the state is playing GOD. I have searched for decades, then you want me to pay someone a huge price to contact my son. THIS is extortion and gestapo control. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW.

  4. I haven't made some of the best choices in the last two years I have been to marion county jail 1 and two on three different occasions each time of release dates I've spent 48 to 72 hours after date of release losing a job being denied my freedom after ordered please help

  5. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

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