Davis v. State, 45A03-9104-CR-113

• Decision Date: 29 October 1991
• Docket Number: No. 45A03-9104-CR-113,45A03-9104-CR-113
• Citation: 580 N.E.2d 326
• Parties: Dwayne DAVIS, Appellant-Defendant Below, v. STATE of Indiana, Appellee-Plaintiff Below.
• Court: Indiana Appellate Court

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 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 the trial court's discretion, the amendment could be permitted under such terms that would accord the defendant adequate opportunity to prepare his defense.

To hold that this statute does not permit charges to be amended for other than form anytime after 30 days prior to the omnibus date would make subsection d superfluous.

* * * * * *

The trial judge can set time limits in such a manner as to be fair to the defendant. Under the circumstances in this case, allowing the State to amend the charges, giving the defendant adequate notice and hearing on the amendment, advising the defendant of the amendment and consequences therefore [sic] and allowing a continuance, if requested, would appear to be consistent with the legislative intent.

Id. at 123. We cited Gullion with approval in Todd v. State (1991), Ind.App., 566 N.E.2d 67, 69, stating, "[T]he trial court may properly allow an amendment of a substantive character under such terms as would preserve the defendant's basic rights to reasonable notice, and an opportunity to be heard and contest the charges." In this context, we examine Davis' claim that he did not receive adequate notice and opportunity to be heard.

Davis' argument that he received inadequate notice must fail. The amended information bears a signed certificate of service, certifying that the deputy prosecutor sent a copy of the document to each party or attorney of record on November 18, 1986, the date the amended information was filed. Record, p. 21. Criminal Rule 18 provides:

Unless the court, on motion or of its own initiative orders otherwise, a copy of every pleading and motion, and every brief submitted to the trial court, except trial briefs, shall be served personally or by mail on or before the day of the filing thereof upon each attorney or firm of attorneys appearing of record for each adverse party. Handing a copy to an attorney or leaving it at the attorney's office with the clerk or other person in charge thereof shall be considered as personal service.

It shall be the duty of attorneys when entering their appearance in a cause...