Debose v. State, No. 1078S217

Docket NºNo. 1078S217
Citation389 N.E.2d 272, 270 Ind. 675
Case DateMay 07, 1979
CourtSupreme Court of Indiana

Page 272

389 N.E.2d 272
270 Ind. 675
Johnny Albert DEBOSE, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 1078S217.
Supreme Court of Indiana.
May 7, 1979.

Page 273

Edward C. Hilgendorf, South Bend, for appellant.

Theo. L. Sendak, Atty. Gen., Terry G. Duga, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Johnny Albert Debose, defendant, was found guilty, by jury, of the crime of robbery, a class A felony. He was sentenced to forty years' imprisonment. In his appeal to this Court, he raises a single issue: did the trial court err in refusing to give his tendered instruction which would have informed the jury of the punishment applicable to the various classes of crimes?

Before we address the merits of the defendant's argument, we note that the defendant has not actually preserved the alleged error for our consideration. He has failed to set out the verbatim tendered instruction within the argument section of his appellate brief. The noncompliance with Ind. Rules A.P. 8.3(A) (7) constitutes waiver. Nonetheless, we shall discuss the problem raised.

West's Ann.Ind.Code § 35-50-1-1 (1978) states that "(t)he court shall [270 Ind. 676] fix the penalty of and sentence a person convicted of an offense." This change in the law, effective October 1, 1977, abolishes jury sentencing. The defendant would assert, however, that because the Indiana Constitution provides that the jury shall determine the law and the facts it necessarily follows that the jury must be instructed regarding penalties. See Ind.Const. Art. 1, § 19; Ind.Code § 35-1-35-1 (Burns 1979).

He is wrong. A jury must be instructed upon matters of law which are necessary for their information in giving their verdict. Ind.Code § 35-1-35-1 (Burns 1979). Since juries may no longer fulfill any function regarding sentencing, the amount of penalty prescribed by the legislature is irrelevant. This is especially true in that most penal statutes under the new code contemplate augmenting or decreasing a basic sentence depending upon aggravating or mitigating circumstances. See West's Ann.Ind.Code § 35-4.1-4-7 (1978). The sentencing judge may also suspend a sentence or impose consecutive terms of imprisonment in certain cases. Considering the wide range of options available to the trial court at the time it sentences a convicted defendant, we believe that it would serve no useful purpose to inform the jury of possible penalties.

It would serve no...

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56 practice notes
  • Cobb v. State, No. 778S142
    • United States
    • Indiana Supreme Court of Indiana
    • November 7, 1980
    ...for bank robbery. Instead, he advised them that that penalty would be fixed by the court. We stated in Debose v. State, (1979) Ind., 389 N.E.2d 272, 273-74: "A jury must determine beyond a reasonable doubt from the evidence presented whether an accused did those specific acts which constitu......
  • Schiro v. State, No. 1181S329
    • United States
    • Indiana Supreme Court of Indiana
    • August 5, 1983
    ...intent. Ind.Code Sec. 35-50-1-1 (Burns Repl.1979) abolished the jury's role in determining or setting a sentence. Debose v. State, (1979) 270 Ind. 675, 676, 389 N.E.2d 272, 273. If we accept Schiro's argument, the trial court would be severely limited in imposing sentence under Ind.Code Sec......
  • Pearson v. State, No. 681S156
    • United States
    • Indiana Supreme Court of Indiana
    • November 12, 1982
    ...criminal code. Smith v. State, (1982) Ind., 432 N.E.2d 1363; Comstock v. State, (1980) Ind., 406 N.E.2d 1164; Debose v. State, (1979) 270 Ind. 675, 389 N.E.2d Defendant next argues that a waiver of rights form and photographs taken of him after his arrest were erroneously admitted. Defendan......
  • Short v. State, No. 381S86
    • United States
    • Indiana Supreme Court of Indiana
    • December 27, 1982
    ...with the offense. Jones v. State, (1981) Ind., 425 N.E.2d 128; Inman v. State, (1979) Ind., 393 N.E.2d 767; DeBose v. State, (1979) 270 Ind. 675, 389 N.E.2d 272. Under I.C. 35-50-1-1 [Burns 1979 Repl.] the duty of sentencing has been left solely with the trial judge. However, in the case at......
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56 cases
  • Cobb v. State, No. 778S142
    • United States
    • Indiana Supreme Court of Indiana
    • November 7, 1980
    ...for bank robbery. Instead, he advised them that that penalty would be fixed by the court. We stated in Debose v. State, (1979) Ind., 389 N.E.2d 272, 273-74: "A jury must determine beyond a reasonable doubt from the evidence presented whether an accused did those specific acts which constitu......
  • Schiro v. State, No. 1181S329
    • United States
    • Indiana Supreme Court of Indiana
    • August 5, 1983
    ...intent. Ind.Code Sec. 35-50-1-1 (Burns Repl.1979) abolished the jury's role in determining or setting a sentence. Debose v. State, (1979) 270 Ind. 675, 676, 389 N.E.2d 272, 273. If we accept Schiro's argument, the trial court would be severely limited in imposing sentence under Ind.Code Sec......
  • Pearson v. State, No. 681S156
    • United States
    • Indiana Supreme Court of Indiana
    • November 12, 1982
    ...criminal code. Smith v. State, (1982) Ind., 432 N.E.2d 1363; Comstock v. State, (1980) Ind., 406 N.E.2d 1164; Debose v. State, (1979) 270 Ind. 675, 389 N.E.2d Defendant next argues that a waiver of rights form and photographs taken of him after his arrest were erroneously admitted. Defendan......
  • Short v. State, No. 381S86
    • United States
    • Indiana Supreme Court of Indiana
    • December 27, 1982
    ...with the offense. Jones v. State, (1981) Ind., 425 N.E.2d 128; Inman v. State, (1979) Ind., 393 N.E.2d 767; DeBose v. State, (1979) 270 Ind. 675, 389 N.E.2d 272. Under I.C. 35-50-1-1 [Burns 1979 Repl.] the duty of sentencing has been left solely with the trial judge. However, in the case at......
  • Request a trial to view additional results

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