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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe Indiana Court of Appeals has affirmed a man’s nearly 80-year sentence for murder and robbery after a drug deal turned deadly. It rejected his double-jeopardy arguments, finding neither fit under a new double jeopardy test adopted by the Indiana Supreme Court this year.
In November 2018, Geovany Diaz was involved in a drug deal gone wrong in Indianapolis that resulted in the death of one man and injury of another after Diaz pulled a gun during the exchange.
Diaz, who had slid into the back seat of the sellers’ vehicle during the exchange, began counting his money to purchase Xanax pills. However, he pulled out a gun and pointed it at the driver, who was shot in the shoulder after attempting to push Diaz’s gun down.
As the driver got out of the car, Diaz shot and killed a man in the vehicle’s passenger-side seat, then taking the men’s wallets, phones and the pills. Diaz was arrested shortly thereafter and later charged with murder; felony murder; two counts of Level 2 felony robbery; Level 3 felony robbery; and Level 5 felony battery.
A jury found Diaz guilty on all counts, but due to double-jeopardy concerns, convictions were only entered for murder, Level 5 felony robbery and Level 2 felony robbery resulting in serious bodily injury. The trial court issued Diaz an aggregate 78-year sentence.
On appeal, Diaz argued that his convictions for murder and the Level 5 felony robbery constituted double jeopardy because his acts “occurred over the course of a few very brief moments” and were really “one action.”
The Indiana Court of Appeals affirmed his convictions, however, finding no double-jeopardy violation under either the old law, prior to the decision in Wadle v. State, 151 N.E.3d 227 (Ind. 2020), or the Wadle analysis in the case of Geovany Diaz v. State of Indiana, 20A-CR-203.
“We reiterate that Wadle did away with the ‘old law’ on claims of substantive double jeopardy, including the (Richardson v. State, 717 N.E.2d 32 (Ind. 1999)) constitutional tests and all common-law rules like the continuous-crime doctrine. We address pre-Wadle law here only because there are outstanding questions about whether Wadle should be applied retroactively,” Judge Nancy Vaidik wrote for the appellate court.
First, it noted that murder and robbery are two distinct chargeable crimes to which the continuous-crime doctrine does not apply. Neither did his convictions violate the actual-evidence test, the appellate court concluded.
“Because neither murder nor Level 5 felony robbery is included in the other, Diaz’s convictions do not constitute double jeopardy under Wadle, and there is no need to further examine the specific facts of the case under the third step of the test,” the appellate court wrote.
As to Diaz’s sentence, it declined to find his age — 21 at the time of the offense and 22 at the time of sentencing — as a mitigating factor based on his criminal history since becoming a legal adult. The appellate court likewise found Diaz failed to convince it that his sentence was inappropriate.
The panel is the same — Vaidik and appellate judges L. Mark Bailey and Leanna Weissmann panel — that issued another opinion Friday, Carl Hill v. State of Indiana, 19A-CR-2083, that further chipped away at prior double-jeopardy caselaw overturned by Wadle.
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