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Habitual offender amendment after jury empaneled ruled error

October 3, 2013

A habitual offender enhancement for a man convicted of robbery cannot stand because the state amended the underlying charges after a jury was empaneled, the Indiana Court of Appeals ruled.

George Nunley was convicted of Class C robbery and sentenced to eight years in prison by a Clark Circuit jury for stealing DVDs from a Rite-Aid drugstore. The jury enhanced Nunley’s sentence by adding 12 years when he was found to be a habitual offender.

But a day after the jury had been seated, the state sought to amend the prior charges against Nunley that it presented to underlie a habitual offender finding, and Judge Daniel Moore permitted the amended charges over Nunley’s objection.

The appellate panel found ample evidence supporting Nunley’s robbery conviction but reversed the habitual offender finding, remanding to the trial court to correct his sentence accordingly in Geroge A. Nunley v. State of Indiana, 10A04-1212-CR-630.

“The amendment here was proposed after the commencement of trial and it prejudiced Nunley’s substantial rights,” Chief Judge Margret Robb wrote for the panel that also included judges James Kirsch and Patricia Riley.

“Additionally, the State, commendably, admitted at the time of the proposed amendment that there was no good cause for the amendment. The convictions that were proposed to be added were all from that same court, and so were available to the State long before trial began and it was apparently simple oversight that led to the listing of the wrong convictions on the original information and a failure to catch the mistake before trial began.

“We therefore conclude that no part of Indiana Code section 35-34-1-5 allowed the amendment that was proposed by the State here,” Robb wrote.

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