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. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  3. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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