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. As one of the many consumers affected by this breach, I found my bank data had been lifted and used to buy over $200 of various merchandise in New York. I did a pretty good job of tracing the purchases to stores around a college campus just from the info on my bank statement. Hm. Mr. Hill, I would like my $200 back! It doesn't belong to the state, in my opinion. Give it back to the consumers affected. I had to freeze my credit and take out data protection, order a new debit card and wait until it arrived. I deserve something for my trouble!

  2. Don't we have bigger issues to concern ourselves with?

  3. Anyone who takes the time to study disciplinary and bar admission cases in Indiana ... much of which is, as a matter of course and by intent, off the record, would have a very difficult time drawing lines that did not take into account things which are not supposed to matter, such as affiliations, associations, associates and the like. Justice Hoosier style is a far departure than what issues in most other parts of North America. (More like Central America, in fact.) See, e.g., http://www.theindianalawyer.com/indiana-attorney-illegally-practicing-in-florida-suspended-for-18-months/PARAMS/article/42200 When while the Indiana court system end the cruel practice of killing prophets of due process and those advocating for blind justice?

  4. Wouldn't this call for an investigation of Government corruption? Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is NOT permissible at the appellate level. **But yet, they look the other way while an innocent child was taken by a loving mother who did nothing wrong"

  5. Different rules for different folks....

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