Coble v. State
| Decision Date | 06 May 1988 |
| Docket Number | No. 79S00-8709-CR-835,79S00-8709-CR-835 |
| Parties | James M. COBLE, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, Hope Fey, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was originally convicted of two counts of Burglary, a Class C felony, and found to be an habitual offender. At that time, he was sentenced to two (2) years on each count of burglary and the sentence on the second count was enhanced by thirty (30) years by reason of his status as an habitual offender. Appeal was taken from that conviction and this Court ordered the habitual offender enhancement vacated. Coble v. State (1986), Ind., 500 N.E.2d 1221. Upon remand of the case, the trial court heard evidence and oral argument from the parties, following which he re-sentenced appellant to six (6) years on Count I and to eight (8) years on Count II. He further ordered that the sentences should run consecutively, whereas in the first instance he had ordered the sentences to run concurrently.
Appellant claims the trial court exceeded its jurisdiction on remand when it purported to vacate his previous sentence on Count I and re-sentenced him on that count. Appellant is correct in this regard. Appellant's original conviction was remanded because of the lack of status as an habitual offender. Appellant's sentence of two (2) years on Count I was not directly affected by the habitual offender status. It was a final judgment not subject to change upon remand. See State ex rel. Kelley v. Marion Cty. Cr. Ct, Div. 3 (1978), 269 Ind. 46, 378 N.E.2d 833; Williams v. State (1986), Ind.App., 494 N.E.2d 1001, cert. denied (1987), --- U.S. ----, 107 S.Ct. 2191, 95 L.Ed.2d 846. The trial court erred in changing the sentence on the Count I conviction.
Appellant claims the trial court erred by increasing the basic sentence on Count II from the original two (2) years to eight (8) years. Appellant is in error in this regard. Appellant did not receive a two (2) year sentence on Count II originally. He did receive a basic sentence of two (2) years; however, this was enhanced by thirty (30) years by reason of his status as an habitual offender. He therefore received a thirty-two (32) year sentence on Count II. On remand the trial court was instructed to re-sentence appellant but to do so without an enhancement by reason of an habitual offender status. It was proper for the trial court to sentence appellant on his conviction of Burglary, a Class C felony, and to impose any sentence permissible under the statute. Flowers v. State (1988), Ind., 518 N.E.2d 1096.
Appellant also claims the trial court erred in changing the sentences from concurrent sentences to consecutive...
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