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High court reverses habitual offender enhancement

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Because the state didn’t offer allowable evidence of a man’s previous theft conviction to support a habitual offender enhancement, the Indiana Supreme Court reversed the enhancement.

In Thomas Dexter v. State of Indiana, No. 79S05-1106-CR-367, Thomas Dexter challenged his conviction of Class A felony neglect of a dependent resulting in death of the dependent and the jury finding that he is a habitual offender. He was sentenced to 30 years for the Class A felony, which was enhanced by 30 years based on his habitual offender status. Five years of his sentence were suspended to probation.

To prove Dexter had been previously convicted of two unrelated felonies – a felony theft conviction in 2000 and felony theft and residential entry convictions in 2005 – the state used a copy of the order entering judgment of conviction in the 2000 case that was not signed by the trial judge. The state also used a “rules of probation” form, the presentence investigation from the 2005 conviction and the testimony of a probation officer. Dexter claimed this was insufficient evidence to prove beyond a reasonable doubt the existence of the 2000 theft conviction.

The justices found that the documentary evidence presented by the state was not sufficient to establish the fact of the alleged 2000 conviction.

“In view of our insistence that proper documentary evidence be submitted to prove the existence of a prior conviction and the important rationale underlying that rule, we hold that a judgment must be signed by the trial judge to constitute substantial evidence of probative value sufficient to sustain a habitual-offender enhancement. Accordingly, the unsigned order of judgment was not probative of the fact of Dexter’s alleged theft conviction in 2000,” wrote Justice Frank Sullivan.

The high court also found that the “rules of probation” form, a presentence investigation report filed prior to sentencing on the 2005 convictions and the testimony of the chief probation officer for Tippecanoe County cannot support the habitual offender finding. But, double jeopardy principles do not preclude the state from retrying Dexter on the enhancement, the justices held.

 

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  1. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

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