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.