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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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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

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  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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