Davis v. State, No. 45A03-9104-CR-113

Docket NºNo. 45A03-9104-CR-113
Citation580 N.E.2d 326
Case DateOctober 29, 1991
CourtCourt of Appeals of Indiana

Page 326

580 N.E.2d 326
Dwayne DAVIS, Appellant-Defendant Below,
v.
STATE of Indiana, Appellee-Plaintiff Below.
No. 45A03-9104-CR-113.
Court of Appeals of Indiana,
Third District.
Oct. 29, 1991.

Nathaniel Ruff, Appellate Public Defender, Crown Point, for appellant.

Linley E. Pearson, Atty. Gen. of Indiana and Michael Gene Worden, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

Dwayne Davis appeals his conviction for four counts of robbery, raising two issues for our review:

I. Whether the trial court erred in failing to dismiss the amended information filed against Davis.

II. Whether the evidence was sufficient to sustain Davis's conviction.

We affirm.

I.

Amended Information

The original information filed by the State charged Davis with one count of robbery of Jose Malave arising out of an incident occurring on October 26, 1986. On November 18, 1986, the State filed an amended information, charging Davis with four counts of robbery of Malave, Eddie

Page 327

Valasca, Linda Schultz, and Wendy Toth. The omnibus date was December 16, 1986.

The cause went to trial on April 6, 1987. Prior to jury selection, the trial judge read the original information, but was corrected by the prosecutor. He then went on to read the remaining three counts of the amended information. On April 8, defense counsel filed a motion to dismiss the amended information, alleging that the prosecutor had failed to comply with Indiana Code 35-34-1-5. The trial judge denied the motion, finding that it was not timely filed.

On appeal, Davis argues that he did not receive proper notice and a hearing regarding the amended information as required by Indiana Code 35-34-1-5. That statute provides in relevant part:

(b) The indictment or information may be amended in matters of substance or form, and the names of material witnesses may be added, by the prosecuting attorney, upon giving written notice to the defendant, at any time up to:

(1) thirty (30) days if the defendant is charged with a felony; or

(2) fifteen (15) days if the defendant is charged only with one (1) or more misdemeanors;

before the omnibus date. When the information or indictment is amended, it shall be signed by the prosecuting attorney.

* * * * * *

(d) Before amendment of any indictment or information other than amendment as provided in subsection (b) of this section, the court shall give all parties adequate notice of the intended amendment and an opportunity to be heard. Upon permitting such amendment, the court shall, upon motion by the defendant, order any continuance of the proceedings which may be necessary to accord the defendant adequate opportunity to prepare his defense.

In his brief, Davis concedes that the prosecutor timely filed the amended information, but challenges the adequacy of notice and hearing. However, the record reveals that the amended information was filed on November 18, 1986, twenty-nine days before the December 16 omnibus date. 1 Thus, the amended information was not filed within the time limits of subsection (b) of the statute.

A similar situation arose in State v. Gullion (1989), Ind.App., 546 N.E.2d 121. There, the state sought to amend the information to add an additional count on the day before trial. In interpreting Indiana Code 35-34-1-5, the court stated:

Reading this statute and considering its history, we believe the legislative intent was to allow the amendment of a criminal charge when, in...

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5 practice notes
  • Ramon v. State, No. 17A03-0707-CR-333.
    • United States
    • Indiana Court of Appeals of Indiana
    • 10 Junio 2008
    ...to object and request a hearing after proper notice.'" Tripp v. State, 729 N.E.2d 1061, 1065 (Ind.Ct.App.2000) (quoting Davis v. State, 580 N.E.2d 326, 328 (Ind. Ct.App.1991)), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201. Here, Ramon was afforded an opportunity to respon......
  • Rita v. State, No. 71A03-9506-CR-185
    • United States
    • Indiana Court of Appeals of Indiana
    • 18 Abril 1996
    ...rights had not been prejudiced, the court found no error in permitting the State to amend the information. See Davis v. State, 580 N.E.2d 326 (Ind.Ct.App.1991) (citing Gullion and Todd in determining whether the defendant received adequate notice of the amendment and opportunity to be heard......
  • Davis v. State, No. 58A01-9807-CR-255.
    • United States
    • Indiana Court of Appeals of Indiana
    • 23 Julio 1999
    ...case. We said that requiring the State to dismiss and refile would exalt form over substance. Id. at 123. Thereafter, in Davis v. State, 580 N.E.2d 326 (Ind.Ct.App.1991), the amendment was not filed until twenty-nine (29) days before the omnibus date. Nevertheless, relying upon Gullion, we ......
  • Tripp v. State, No. 43A03-9909-CR-345.
    • United States
    • Indiana Court of Appeals of Indiana
    • 19 Junio 2000
    ...information. The trial court acted in a manner sufficient to satisfy the controlling statute and relevant case law. In Davis v. State, 580 N.E.2d 326 (Ind.Ct. App.1991) we stated the trial court need not "set a hearing in every instance that an information is sought to be amended after ... ......
  • Request a trial to view additional results
5 cases
  • Ramon v. State, No. 17A03-0707-CR-333.
    • United States
    • Indiana Court of Appeals of Indiana
    • 10 Junio 2008
    ...to object and request a hearing after proper notice.'" Tripp v. State, 729 N.E.2d 1061, 1065 (Ind.Ct.App.2000) (quoting Davis v. State, 580 N.E.2d 326, 328 (Ind. Ct.App.1991)), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201. Here, Ramon was afforded an opportunity to respon......
  • Rita v. State, No. 71A03-9506-CR-185
    • United States
    • Indiana Court of Appeals of Indiana
    • 18 Abril 1996
    ...rights had not been prejudiced, the court found no error in permitting the State to amend the information. See Davis v. State, 580 N.E.2d 326 (Ind.Ct.App.1991) (citing Gullion and Todd in determining whether the defendant received adequate notice of the amendment and opportunity to be heard......
  • Davis v. State, No. 58A01-9807-CR-255.
    • United States
    • Indiana Court of Appeals of Indiana
    • 23 Julio 1999
    ...case. We said that requiring the State to dismiss and refile would exalt form over substance. Id. at 123. Thereafter, in Davis v. State, 580 N.E.2d 326 (Ind.Ct.App.1991), the amendment was not filed until twenty-nine (29) days before the omnibus date. Nevertheless, relying upon Gullion, we ......
  • Tripp v. State, No. 43A03-9909-CR-345.
    • United States
    • Indiana Court of Appeals of Indiana
    • 19 Junio 2000
    ...information. The trial court acted in a manner sufficient to satisfy the controlling statute and relevant case law. In Davis v. State, 580 N.E.2d 326 (Ind.Ct. App.1991) we stated the trial court need not "set a hearing in every instance that an information is sought to be amended after ... ......
  • Request a trial to view additional results

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