ILNews

Judges clarify late-filed amendment required reversal, not remand

Jennifer Nelson
December 18, 2013
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On a petition for rehearing, the Indiana Court of Appeals affirmed its decision to reverse a habitual offender enhancement because the amendment to the habitual offender allegation was made after the trial started and prejudiced the defendant’s rights.

In George A. Nunley v. State of Indiana, 10A04-1212-CR-630, the state argued that the proper remedy for a late-filed amendment would have been for the Court of Appeals to remand for proceedings on an habitual offender sentence enhancement, rather than the reversal that the court ordered. In support of its argument, the state cited Jaramillo v. State, 823 N.E.2d 1187 (Ind. 2005), in which the Supreme Court held that the “Double Jeopardy Clause does not prevent the state from re-prosecuting a habitual offender enhancement after conviction therefore has been reversed on appeal for insufficient evidence.”

But Jaramillo is based on an enhancement that was overturned for insufficient evidence; in George Nunley’s case, the state failed to timely and properly allege the habitual offender status.

“Because the State’s original habitual offender allegation failed to list appropriate predicate offenses, there would be nothing to address on remand without an amendment to the allegation. Were we to remand now and allow the State to amend its original allegation, Indiana Code section 35-4-1-5 and its timing requirements would be rendered pointless,” Chief Judge Margret Robb wrote.

Judge Patricia Riley would deny the petition for rehearing.

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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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