Cuppett v. State, 482S134
| Citation | 448 N.E.2d 298 |
| Decision Date | 06 May 1983 |
| Docket Number | No. 482S134,482S134 |
| Parties | Robert Russell CUPPETT, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Garry A. Weiss, Katz, Brenman & Angel, Merrillville, for appellant.
Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was convicted by a jury of Robbery, a Class B felony. He was sentenced to a term of ten years of imprisonment. He was additionally found to be an habitual offender. The court sentenced him to a thirty (30) year term based on this finding.
We note, sua sponte, the erroneous sentencing of appellant in that the habitual criminal charge was treated as a separate charge. One convicted of a crime and found to be an habitual criminal is not sentenced separately for that finding. The defendant receives an enhancement of thirty years on his sentence for the instant crime. Although a technical error, it is imperative to enhance the felony sentence by the thirty (30) year term to avoid constitutional violations of the Eighth Amendment and the prohibition against double jeopardy. Yager v. State, (1982) Ind., 437 N.E.2d 454.
We therefore remand the cause to the trial court for correction of sentence. The correct sentence is ten (10) years for the robbery conviction, enhanced by thirty (30) years because of the habitual offender finding. The trial court will be affirmed in all other things for the following reasons.
Appellant claims the evidence is insufficient to support the conviction of robbery. He specifically argues the State failed to establish beyond a reasonable doubt that he was the perpetrator of the offense.
Under our standard of review, we do not reweigh the evidence or judge the credibility of witnesses. Dew v. State, (1982) Ind., 439 N.E.2d 624.
The record reveals a man was admitted to Lag Inn by the owner-manager Fary, at approximately 11:30 P.M. The man, later identified as appellant by Fary and a patron of the tavern, drew a sawed-off shotgun, cocked it and held it to Fary's head. Following appellant's directions, Fary took money from the cash drawer and loose bills from the bar. Appellant directed Fary and two patrons to a back room and ordered them to lie on the floor.
Following the incident, Fary and the patron gave substantially similar descriptions to the police. The tavern had been well-lighted. The patron focused his attention on the robber for approximately two minutes at a distance of fifteen...
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Cuppett v. Duckworth
...to his ten-year robbery sentence. Cuppett's conviction was affirmed on direct appeal by the Indiana Supreme Court. Cuppett v. State, 448 N.E.2d 298, 299 (Ind.1983). On March 19, 1984, almost twenty-two years after his West Virginia conviction, Cuppett petitioned the Circuit Court of Mononga......
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Humbert v. Smith
...is the trier of fact who must resolve conflicts in the evidence and determine which witnesses to believe or disbelieve. Cuppett v. State (1983), Ind., 448 N.E.2d 298, 300; Roberson v. State (1982), Ind., 430 N.E.2d 1173, The evidence is of sufficient probative value to support the trial cou......
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Randall v. State
...evidence and the credibility of the witnesses was within the jury's province and we will not second guess them on appeal. Cuppett v. State, (1983) Ind., 448 N.E.2d 298; Oatts v. State, (1982) Ind., 437 N.E.2d 463, reh. denied. There was more than sufficient evidence presented at trial to su......
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Marshall v. State
...place. Hubble v. State (1973), 260 Ind. 655, 299 N.E.2d 612. The trier of fact must resolve conflicts in the evidence. Cuppet v. State (1983), Ind., 448 N.E.2d 298. It was for the jury to determine which witnesses to believe or disbelieve. Roberson v. State (1982), Ind., 430 N.E.2d 1173. Th......