Davenport v. State, No. 49S00-9510-CR-1245

Docket NºNo. 49S00-9510-CR-1245
Citation696 N.E.2d 870
Case DateJuly 28, 1998
CourtSupreme Court of Indiana

Page 870

696 N.E.2d 870
Keith DAVENPORT, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 49S00-9510-CR-1245.
Supreme Court of Indiana.
July 28, 1998.

Steven C. Litz, Monrovia, for Appellant.

Page 871

Jeffrey A. Modisett, Attorney General, Preston W. Black, Deputy Attorney General, Indianapolis, for Appellee.

ON PETITION FOR REHEARING

SELBY, Justice.

In its petition for rehearing, the State asks that this Court reinstate the three convictions that we dismissed in defendant Keith Davenport's direct appeal. Davenport v. State, 689 N.E.2d 1226 (Ind.1997). We grant this petition for rehearing for the purpose of correcting the state of the record. In the direct appeal, we described the events surrounding the dismissed convictions as follows:

"On July 14, 1994 in Marion Superior Court, Criminal Division 5, the State charged defendant with one count of murder. On February 2, 1995, four days prior to trial, the State filed a motion to amend the charging information by adding the charges of felony murder, attempted robbery, and auto theft. The court denied the motion. On February 6, 1995, the State dismissed the murder charge and refiled it, along with the three new charges. The State then transferred the case to Marion Superior Court, Criminal Division 1. In the new court, defendant filed a motion to dismiss the added charges. The trial court conducted a hearing and denied the motion." Davenport, 689 N.E.2d at 1229.

As the State points out in its petition for rehearing, the series of events occurred slightly differently. The State originally charged defendant with one count of murder in Criminal Division 1. On February 2, 1995, four days prior to trial, the State moved to amend the information by adding the three other charges. The motion was denied. On February 6, 1995, the State dismissed the information. That same day, the State refiled the murder charge, along with the three additional charges, in Criminal Division 5. Also that same day, the State moved to transfer the case back to Criminal Division 1. The transfer was granted. Defendant moved to dismiss the three additional counts in Criminal Division 1. After a hearing, the motion was denied.

This slight change in events does not alter our decision regarding the State's actions. As we stated in our original opinion, what the State managed to do here in dismissing and refiling was "significantly different from what has been permitted in the past."...

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20 practice notes
  • Stephenson v. State, No. 87S00-9605-DP-398.
    • United States
    • Indiana Supreme Court of Indiana
    • 25 Enero 2001
    ...does not make such testimony "incredibly dubious." See Davenport v. State, 689 N.E.2d 1226, 1230 (Ind. 1997), reh'g granted in part, 696 N.E.2d 870 (1998). Funk unequivocally identified Defendant as the perpetrator who shot the three victims and he did not waver in his identification of Def......
  • Fisher v. State, No. 82A05-0704-PC-215.
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 Diciembre 2007
    ...prior inconsistent statements where trial counsel cross-examines witness regarding inconsistencies), corrected in part on reh'g, 696 N.E.2d 870. Fisher has failed to demonstrate that had his counsel introduced evidence that Gray's husband and Baumeyer also failed to pick out Fisher, the res......
  • Allen v. State, No. 89A01-9902-CR-56.
    • United States
    • Indiana Court of Appeals of Indiana
    • 19 Enero 2000
    ...History of Delinquent Activity Citing Davenport v. State, 689 N.E.2d 1226, 1232 (Ind.1997), rehearing granted in part on other grounds, 696 N.E.2d 870 (Ind.1998), Allen correctly observes that "[a] defendant's juvenile record may be treated as an aggravating circumstance if the trial court ......
  • State v. Klein, No. 49A02-9802-CR-105
    • United States
    • Indiana Court of Appeals of Indiana
    • 10 Diciembre 1998
    ...supreme court has recently addressed a similar situation in Davenport v. State, 689 N.E.2d 1226 Page 776 (Ind.1997), modified on reh'g, 696 N.E.2d 870 (1998). There, the court held that the prosecutor's dismissal of the original charge followed by the refiling of that charge and the additio......
  • Request a trial to view additional results
20 cases
  • Stephenson v. State, No. 87S00-9605-DP-398.
    • United States
    • Indiana Supreme Court of Indiana
    • 25 Enero 2001
    ...not make such testimony "incredibly dubious." See Davenport v. State, 689 N.E.2d 1226, 1230 (Ind. 1997), reh'g granted in part, 696 N.E.2d 870 (1998). Funk unequivocally identified Defendant as the perpetrator who shot the three victims and he did not waver in his identification o......
  • Fisher v. State, No. 82A05-0704-PC-215.
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 Diciembre 2007
    ...prior inconsistent statements where trial counsel cross-examines witness regarding inconsistencies), corrected in part on reh'g, 696 N.E.2d 870. Fisher has failed to demonstrate that had his counsel introduced evidence that Gray's husband and Baumeyer also failed to pick out Fisher, the res......
  • Allen v. State, No. 89A01-9902-CR-56.
    • United States
    • Indiana Court of Appeals of Indiana
    • 19 Enero 2000
    ...History of Delinquent Activity Citing Davenport v. State, 689 N.E.2d 1226, 1232 (Ind.1997), rehearing granted in part on other grounds, 696 N.E.2d 870 (Ind.1998), Allen correctly observes that "[a] defendant's juvenile record may be treated as an aggravating circumstance if the trial c......
  • State v. Klein, No. 49A02-9802-CR-105
    • United States
    • Indiana Court of Appeals of Indiana
    • 10 Diciembre 1998
    ...supreme court has recently addressed a similar situation in Davenport v. State, 689 N.E.2d 1226 Page 776 (Ind.1997), modified on reh'g, 696 N.E.2d 870 (1998). There, the court held that the prosecutor's dismissal of the original charge followed by the refiling of that charge and the additio......
  • Request a trial to view additional results

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