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Charge dismissed in error negates felony DUI enhancement

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The state’s errant dismissal of a misdemeanor drunken-driving charge in 2009 may not be corrected in order to enhance to a felony a defendant’s second such charge within five years, a divided panel of the Indiana Court of Appeals ruled.

The majority reversed a ruling by Grant Superior Judge Warren Haas in which he denied a motion to dismiss a Class D felony charge of operating while intoxicated because the state had filed a nunc pro tunc entry reinstating the 2009 conviction.

Richard Dillon pleaded guilty to misdemeanor operating while intoxicated and marijuana possession charges in 2009. The state later moved to dismiss “Count 1,” mistakenly referring to the drunken-driving charge, when it meant to dismiss the marijuana charge.

In Richard Dillon v. State of Indiana, 27A05-1210-CR-542, Judges Nancy Vaidik and Ezra Friedlander ruled on interlocutory appeal that the state could not correct the mistake by filing the motion correcting its error after Dillon had been arrested a second time on a drunken-driving charge.

“This means that when Dillon allegedly committed the OWI in this case, he did not have a prior conviction within five years because the nunc pro tunc entry had not yet been made," Vaidik wrote in reversing the trial court. “Had the State moved to reinstate Dillon’s inadvertently dismissed OWI … before he allegedly committed the OWI in this case, then the OWI in this case would be subject to the Class D felony enhancement pursuant to Indiana Code section 9-30-5-3. But that is not what happened.”

Judge John Baker dissented, writing that the trial court could not have dismissed “Count 1,” because it was the charge upon which a judgment of conviction already had been entered. “Moreover, even assuming the trial court’s order dismissing Count 1 was not void, we cannot permit criminal defendants to reap the benefits of simple scriveners’ errors,” Baker wrote.





 

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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