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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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