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Habitual offender amendment after jury empaneled ruled error

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A habitual offender enhancement for a man convicted of robbery cannot stand because the state amended the underlying charges after a jury was empaneled, the Indiana Court of Appeals ruled.

George Nunley was convicted of Class C robbery and sentenced to eight years in prison by a Clark Circuit jury for stealing DVDs from a Rite-Aid drugstore. The jury enhanced Nunley’s sentence by adding 12 years when he was found to be a habitual offender.

But a day after the jury had been seated, the state sought to amend the prior charges against Nunley that it presented to underlie a habitual offender finding, and Judge Daniel Moore permitted the amended charges over Nunley’s objection.

The appellate panel found ample evidence supporting Nunley’s robbery conviction but reversed the habitual offender finding, remanding to the trial court to correct his sentence accordingly in Geroge A. Nunley v. State of Indiana, 10A04-1212-CR-630.

“The amendment here was proposed after the commencement of trial and it prejudiced Nunley’s substantial rights,” Chief Judge Margret Robb wrote for the panel that also included judges James Kirsch and Patricia Riley.

“Additionally, the State, commendably, admitted at the time of the proposed amendment that there was no good cause for the amendment. The convictions that were proposed to be added were all from that same court, and so were available to the State long before trial began and it was apparently simple oversight that led to the listing of the wrong convictions on the original information and a failure to catch the mistake before trial began.

“We therefore conclude that no part of Indiana Code section 35-34-1-5 allowed the amendment that was proposed by the State here,” Robb wrote.

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  1. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  2. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  3. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  4. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  5. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

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