ILNews

Court interprets revised procedural statute

Michael W. Hoskins
January 1, 2008
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
The Indiana Court of Appeals has found strong and compelling evidence to apply retroactivity to a procedural state statute lawmakers changed last year following a ruling from Indiana Supreme Court.

In Mark Hurst v. State of Indiana, No. 64A03-0710-CR-490, the appellate court affirmed a Porter Superior judge's ruling that the court properly amended charging information 15 months after the original omnibus date, that sufficient evidence of seriously bodily injury existed to support a felony battery conviction, and that Hurst was properly sentenced to nine years.

The case involves a battery on the woman that Hurst was living with off and on for about five years, who was also the mother of Hurst's child. In July 2005, the two got into an argument and Hurst came over to the woman's home, kicked in the door, and beat her to the point of unconsciousness. The state charged him with felony rape, residential entry, domestic battery, and a misdemeanor for interference with reporting a crime. Charges were later amended twice in January 2007 to ramp up the seriousness of his alleged actions.

A main issue in the case was whether modifications were allowed in charging information related to matters of substance when the substantial rights of the defendant were not prejudiced. Prior to last year, caselaw allowed that. But the Indiana Supreme Court ruled Jan. 16, 2007, in Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007), to interpret Indiana Code 35-34-1-5(b), holding that when a person is charged with a felony, any amendments are only allowed if it's more than 30 days before the omnibus date, regardless of whether the defendant's rights are prejudiced.

Lawmakers revised that statute allowing the state to amend charges before a trial starts as long as the amendment doesn't prejudice the defendant's substantial rights. It took effect May 8, 2007.

In Hurst, parties disagree which statute applied - the former version as interpreted by Fajardo or the current version enacted during Hurst's trial. Hurst doesn't want the new statute to apply because it allowed the change in charging information.

"This prompt return to pre-Fajardo law indicates urgency in the legislature's desire to negate the effects of Fajardo," the court wrote today. "Though the legislature did not expressively provide for retroactive application of the amended statute, we are confident that this was the clear intent of such legislation. Therefore, the current statute applies."

The appellate court found no error because Hurst had reasonable time to prepare for and defend against the amended charges.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

ADVERTISEMENT