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. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  2. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  3. Indiana up holds this behavior. the state police know they got it made.

  4. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

  5. Agreed on 4th Amendment call - that was just bad policing that resulted in dismissal for repeat offender. What kind of parent names their boy "Kriston"?

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