ILNews

Court interprets revised procedural statute

Michael W. Hoskins
January 1, 2008
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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.
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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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