ILNews

Judges clarify late-filed amendment required reversal, not remand

Jennifer Nelson
December 18, 2013
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On a petition for rehearing, the Indiana Court of Appeals affirmed its decision to reverse a habitual offender enhancement because the amendment to the habitual offender allegation was made after the trial started and prejudiced the defendant’s rights.

In George A. Nunley v. State of Indiana, 10A04-1212-CR-630, the state argued that the proper remedy for a late-filed amendment would have been for the Court of Appeals to remand for proceedings on an habitual offender sentence enhancement, rather than the reversal that the court ordered. In support of its argument, the state cited Jaramillo v. State, 823 N.E.2d 1187 (Ind. 2005), in which the Supreme Court held that the “Double Jeopardy Clause does not prevent the state from re-prosecuting a habitual offender enhancement after conviction therefore has been reversed on appeal for insufficient evidence.”

But Jaramillo is based on an enhancement that was overturned for insufficient evidence; in George Nunley’s case, the state failed to timely and properly allege the habitual offender status.

“Because the State’s original habitual offender allegation failed to list appropriate predicate offenses, there would be nothing to address on remand without an amendment to the allegation. Were we to remand now and allow the State to amend its original allegation, Indiana Code section 35-4-1-5 and its timing requirements would be rendered pointless,” Chief Judge Margret Robb wrote.

Judge Patricia Riley would deny the petition for rehearing.

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  1. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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