Heathe v. State
Decision Date | 09 November 1971 |
Docket Number | No. 970S211,970S211 |
Citation | 274 N.E.2d 697,257 Ind. 345 |
Parties | Michael G. HEATHE, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Supreme Court |
Donald D. Chiappetta, Muncie, for appellant.
Theodore L. Sendak, Atty. Gen., for appellee.
The appellant in this case was charged by affidavit with the commission of the crime of entering to commit a felony and the possession of burglary tools. The appellant entered a plea of guilty to the charge of entering to commit a felony, and thereafter, the charge of possession of burglary tools was dismissed. The appellant was then found guilty by the court of entering to commit a felony and was sentenced to the Indiana State Prison for a period of from one to ten years. The sole issue before this Court at this time concerns the validity of that sentence.
The appellant's position is that he was sentenced in violation of Art. 1, § 16 of the Constitution of Indiana, which section reads as follows:
His argument, in brief, is that the crime of entering to commit a felony is a lesser included offense of the crime of second degree burglary, and that it is unconstitutional to impose a higher sentence for a lesser included offense than would be imposed for the higher offense. We agree with appellant and, therefore, remand this case to the trial court with instructions to modify the sentence by reducing the maximum to five years.
The appellant was tried in this case under an affidavit charging that he,
'did then and there unlawfully and feloniously enter the enclosed building of Green Hills Country Club, Inc., a corporation, then and there located on Ball road, in Delaware County, State of Indiana, with the intent to commit a felony therein, to-wit: to commit the crime of theft of the property of the said Green Hills Country Club, Inc.'
We have previously determined that the charge of entering a structure other than a dwelling house or a place of human habitation with the intent to commit a felony therein is a lesser included offense of second degree burglary. Hobbs v. State (1969), Ind., 252 N.E.2d 498; Freeman v. State (1967), 249 Ind. 211, 231 N.E.2d 246. It has also been established in Indiana that an indeterminate sentence is for the maximum time prescribed by the statute, Hobbs v. State, supra, so that the ten year maximum sentence for the lesser included offense of entering to commit a felony is clearly greater than the five year maximum sentence for the higher crime of second degree burglary. As we said in Dembowski v. State (1968), 251 Ind. 250, 240 N.E.2d 815:
(Original emphasis.) 251 Ind. at 253, 240 N.E.2d at 817.
In Dembowski, supra, this Court relied on Weems v. United States (1910), 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793, in which it was stated that 'it is a precept of justice that punishment for crime should be graduated and proportioned to the offense.' 217 U.S. at 367, 30 S.Ct. at 549. We then went on to state:
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People v. Schueren
...disapproved.7 The ruling in Hobbs and Dembowski is not limited to the situation where the 'greater' offense is charged. (Heathe v. State, (Ind.) 274 N.E.2d 697, 698--699.)8 Article 1, section 6, of our Constitution 'is not a static document.' (See People v. Anderson, Supra, 6 Cal.3d 628, 64......
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Wadle v. State
...power to define criminal offenses and set penalties thereof." Id. at 252, 240 N.E.2d at 817. See also Heathe v. State , 257 Ind. 345, 349, 274 N.E.2d 697, 699 (1971) ("The constitutional mandate that ‘all penalties shall be proportioned to the nature of the offense’ requires that the maximu......
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Woodson v. State
...Jackson v. State (1971), 257 Ind. 477, 275 N.E.2d 538. See also Lee v. State (1972), 259 Ind. 301, 286 N.E.2d 840 and Heathe v. State (1971), 257 Ind. 345, 274 N.E.2d 697 and McDougall v. State (1970), 254 Ind. 62, 257 N.E.2d 674 where the rule of Dembowski has been applied notwithstanding ......
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Sutton v. State of Md., Civ. No. H-87-2386.
...offense was not actually charged.10 Only the Indiana courts have addressed this precise constitutional issue.11 In Heathe v. State, 257 Ind. 345, 274 N.E.2d 697 (1971), the Supreme Court of Indiana held that the sentence for a lesser included offense may not, under the eighth amendment and ......