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Man may be retried on sex charge, but state may not amend

August 13, 2013

A man acquitted on a rape charge but whose charge of sexual misconduct with a minor ended in a hung jury and mistrial may be retried, but not on a count the state sought to amend, the Court of Appeals ruled Tuesday.

The panel affirmed judgments of Jefferson Circuit Court in Gregory A. Harris v. State of Indiana, 39A05-1205-CR-239. The trial court denied a motion from Harris to dismiss the charge against him on double-jeopardy grounds and denied a state motion to amend a charge against him alleging sexual intercourse with a child by adding the language “or sexual deviate conduct.”

“We find that double jeopardy does not bar Harris’s retrial on the sexual misconduct charge and that the statute of limitations precludes the state from amending the sexual misconduct charge,” Judge Terry Crone wrote for the panel.

Crone wrote that had the trial court allowed the amended charge, Harris would have had grounds for dismissal. “Just as the state would be barred from bringing a new or refiled charge of deviate sexual conduct, it is barred from bringing the charge through an amendment. The statute of limitations cannot be circumvented because of the procedural availability of amending informations or the happenstance of mistrial.”
 

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