ILNews

Court reverses motion-to-dismiss denial

Jennifer Nelson
January 1, 2007
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The Indiana Court of Appeals reversed the denial of a defendant's motion to dismiss because he was improperly subjected to successive prosecutions prohibited under Indiana Code 35-41-4-4.

In Virgil Lee Haywood, Jr. v. State of Indiana, 48A02-0612-CR-1131, police approached Haywood after an alleged drunk-driving incident. Haywood's child was in his car, and he smelled of alcohol and failed several field sobriety tests. Haywood struggled with police and kicked an officer in the leg while refusing to sit in the back a police car. Haywood was charged in Madison County Court with neglect of a dependent, a Class D felony; operating a vehicle while intoxicated, a Class A misdemeanor; operating a vehicle with a BAC of .08 or more, a Class C misdemeanor; and operating a vehicle while intoxicated as a Class D felony.

In City Court, Haywood was charged with battery against a police officer, resisting law enforcement, and violation of probation. Haywood pleaded guilty to the City Court charges under a plea agreement.

He later filed a motion to dismiss the charges in county court, claiming prosecution on those charges was barred by previous prosecution of the City Court charges. The trial court denied his motion.

The Court of Appeals looked to Williams v. State, 762 N.E.2d 1216, 1219 (Ind. 2002) to determine whether the trial court properly denied Haywood's motion. The court had to decide if Haywood's offenses were part of a single scheme or plan that would require they should have been joined in the initial prosecution, which is required under the Successive Prosecution Statute to bar prosecution by reason of a previous prosecution.

The state conceded Haywood's charges all relate to the same incident but his motive for each conviction was different enough to warrant separate cases.

Just as in Williams, the defendant in this case committed a crime and then committed another in an attempt to avoid being caught for the original offenses. The court in Williams held that Williams' flight from the arresting officer did not break the continuity of the defendant's acts to require separate trials.

"As in Williams, it is apparent that Haywood's offenses were part of a single scheme or plan, and the Successive Prosecution Statute bars further prosecution on the (County Court) charges," wrote Chief Judge John Baker.
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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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