Haymaker v. State, No. 79S00-9505-CR-555

Docket NºNo. 79S00-9505-CR-555
Citation667 N.E.2d 1113
Case DateJune 19, 1996
CourtSupreme Court of Indiana

Page 1113

667 N.E.2d 1113
Terry P. HAYMAKER, Appellant (Petitioner Below),
v.
STATE of Indiana, Appellee (Respondent Below).
No. 79S00-9505-CR-555.
Supreme Court of Indiana.
June 19, 1996.

Timothy P. Broden, Lafayette, for Appellant.

Pamela Carter, Attorney General, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, for Appellee.

SELBY, Justice.

Terry P. Haymaker ("Defendant") was convicted of Dealing in Cocaine, a Class A felony, and Conspiracy to Commit Dealing in Cocaine, a Class A felony. The trial judge sentenced defendant to twenty-five (25) years for each of these convictions, to be served concurrently. The judge then enhanced the dealing charge by an additional thirty (30) years due to an Habitual Offender determination, for a fifty-five (55) year sentence, forty-five (45) years executed and ten (10) years probation. Defendant now challenges the habitual offender determination. We affirm.

FACTS

On February 17, 1994, the State filed an Information on defendant for allegedly dealing in cocaine within one thousand (1,000) feet of a school. On the same day, the State also filed an information of habitual offender, which listed the following prior felony convictions: a 1990 conviction for driving while being an habitual offender and a 1993 conviction for possession of marijuana. (R. at 15-16). Although the omnibus date was April 15, 1994, the State did not file an amended information regarding the habitual offender allegation until December 12, 1994, one day before trial. In that amended information, the State listed the same 1990 habitual traffic offender conviction, but substituted a 1982 criminal confinement conviction for the possession of marijuana conviction. (Supp.R. at 1). An information for the conspiracy charge was filed October 19, 1994.

The jury returned guilty verdicts on the dealing and conspiracy charges. Defendant then waived his right to a jury trial on the habitual offender phase of the bifurcated proceeding. Over defendant's objection for untimeliness, the trial court permitted the State to proceed on the amended habitual offender

Page 1114

charge. The State presented both testimony and documentary evidence to support its allegation that defendant had committed the predicate felonies. The trial court found defendant to be an habitual offender, and enhanced defendant's twenty-five (25) year sentence for dealing in cocaine by an additional thirty (30) years.

Defendant challenges this habitual offender determination on two grounds. First, defendant claims that it was error for the trial judge to allow the State to amend the habitual offender information, since INDIANA CODE § 35-34-1-5(e) requires that an amendment of an information to include an habitual offender charge be filed not later than ten days after the omnibus date. Also, defendant challenges the use of an habitual traffic violator conviction to support an habitual offender enhancement. We affirm the use of the habitual offender enhancement in this case, and we affirm the sentence.

I.

Defendant asserts that the trial judge erred by allowing the State to amend the habitual offender information on the eve of the trial. I.C. § 35-34-1-5(e) reads as follows:

An amendment of an indictment or information to include a habitual...

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43 practice notes
  • Wright v. State, No. 18S00-9606-CR-458
    • United States
    • Indiana Supreme Court of Indiana
    • 29 Diciembre 1997
    ...to request a continuance after the court granted the motion to amend, defendant has waived this issue on appeal. Haymaker v. State, 667 N.E.2d 1113, 1114 Even if, however, defendant had properly preserved the issue for appeal, his argument would still fail, for defendant has not explained h......
  • Conrad v. State, No. 57A03-0009-CR-331.
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Abril 2001
    ...Id. at 71. This holding was also reflected in Devore v. State, 657 N.E.2d 740, 742 (Ind.1995).8 However, in Haymaker v. State, 667 N.E.2d 1113 (Ind.1996), our supreme court held a prior habitual traffic violator conviction could be used as a predicate offense upon which to base a "general" ......
  • Dye v. State, No. 20S04–1201–CR–5.
    • United States
    • Indiana Supreme Court of Indiana
    • 31 Julio 2012
    ...E.g., Ross, 729 N.E.2d at 116;Stanek, 603 N.E.2d at 153–54. If not, then there is no double-enhancement problem. Haymaker v. State, 667 N.E.2d 1113, 1115 (Ind.1996). But if so, then the general rule against double enhancements is triggered and we will invalidate a double enhancement unless ......
  • Weida v. State, No. 08A02-9706-CR-351
    • United States
    • Indiana Court of Appeals of Indiana
    • 31 Marzo 1998
    ...to statute that has been construed by courts is presumed to be response to such appellate decisions). See also Haymaker v. State, 667 N.E.2d 1113, 1115 (Ind.1996) (noting amendment to IC 35-50-2-10 and declaring that "effective July 1, 1996, prior convictions under I.C. 9-30-5 (operating a ......
  • Request a trial to view additional results
43 cases
  • Wright v. State, No. 18S00-9606-CR-458
    • United States
    • Indiana Supreme Court of Indiana
    • 29 Diciembre 1997
    ...to request a continuance after the court granted the motion to amend, defendant has waived this issue on appeal. Haymaker v. State, 667 N.E.2d 1113, 1114 Even if, however, defendant had properly preserved the issue for appeal, his argument would still fail, for defendant has not explained h......
  • Conrad v. State, No. 57A03-0009-CR-331.
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Abril 2001
    ...Id. at 71. This holding was also reflected in Devore v. State, 657 N.E.2d 740, 742 (Ind.1995).8 However, in Haymaker v. State, 667 N.E.2d 1113 (Ind.1996), our supreme court held a prior habitual traffic violator conviction could be used as a predicate offense upon which to base a "general" ......
  • Dye v. State, No. 20S04–1201–CR–5.
    • United States
    • Indiana Supreme Court of Indiana
    • 31 Julio 2012
    ...E.g., Ross, 729 N.E.2d at 116;Stanek, 603 N.E.2d at 153–54. If not, then there is no double-enhancement problem. Haymaker v. State, 667 N.E.2d 1113, 1115 (Ind.1996). But if so, then the general rule against double enhancements is triggered and we will invalidate a double enhancement unless ......
  • Weida v. State, No. 08A02-9706-CR-351
    • United States
    • Indiana Court of Appeals of Indiana
    • 31 Marzo 1998
    ...to statute that has been construed by courts is presumed to be response to such appellate decisions). See also Haymaker v. State, 667 N.E.2d 1113, 1115 (Ind.1996) (noting amendment to IC 35-50-2-10 and declaring that "effective July 1, 1996, prior convictions under I.C. 9-30-5 (operating a ......
  • Request a trial to view additional results

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