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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues