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Justices reaffirm ruling on sentence enhancements under habitual offender statute

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The Indiana Supreme Court Thursday granted the state’s request for a rehearing in a case in which the justices determined that Anthony Dye’s sentence for unlawful possession of a firearm by a serious violent felon, which was enhanced under the general habitual offender statute, was an impermissible double enhancement. The justices used the rehearing to reiterate that a person convicted of unlawful possession of a firearm by a SVF may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the person was a SVF.

In Anthony H. Dye v. State of Indiana, 20S04-1201-CR-5,  the state petitioned for rehearing contending the court’s decision in Dye’s case was a departure from Mills v. State, 868 N.E.2d 446, 452 (Ind. 2007), in that the justices held that serious violent felons who possess firearms cannot be punished as habitual offenders.

In Mills, the court held “a person convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the person was a ‘serious violent felon.’” The justices reaffirmed the ruling, but pointed out that Dye is not entitled to relief on this ground.

Instead, the felony used to establish that Dye was a habitual offender was part of the same res gestae, and the enhancements must be based on two unrelated prior felonies. Dye's stemmed from a confrontation between Dye and an Elkhart Police officer in 1997, where he pleaded guilty to possession of a handgun, possession of a handgun within 1,000 feet of a school, and attempted battery while armed with a deadly weapon. The state used the possession within 1,000 feet of a school and a 1993 conviction for forgery to seek to have his sentenced enhanced under the general habitual offender statute. He was charged in 2007 - the conviction at issue in this case - with unlawful possession of a firearm by a SVF based on his conviction of attempted battery with a deadly weapon stemming from the 1997 incident.

“The State is not be permitted to support Dye's habitual offender finding with a conviction that arose out of the same res gestae that was the source of the conviction used to prove Dye was a serious violent felon,” Rucker wrote.

Justice Mark Massa concurred with his colleagues that the original opinion didn’t extend Mills to situations where different prior unrelated convictions are used to establish a habitual offender finding and the elements of the SVF statue, but continued to “dissent from the ultimate result on rehearing for reasons previously explained” in the original opinion.
 

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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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