Howard v. State, 977S684
| Docket Nº | No. 977S684 |
| Citation | 268 Ind. 589, 377 N.E.2d 628 |
| Case Date | June 26, 1978 |
| Court | Supreme Court of Indiana |
Page 628
v.
STATE of Indiana, Appellee.
[268 Ind. 590]
Page 629
Mark Peden, Foley, Foley & Peden, Martinsville, for appellant.Theodore L. Sendak, Atty. Gen., David Michael Wallman, Deputy Atty. Gen., Indianapolis, for appellee.
GIVAN, Chief Justice.
Appellant was convicted of entering to commit a felony, second degree burglary and safe burglary. Following trial, a separate hearing was had to determine whether or not appellant was also an habitual criminal. After finding that he was an habitual criminal, the court sentenced appellant to life imprisonment.
The facts most favorable to the State show that in the early morning hours of December 8, 1975, appellant and one Charles Humphrey, were discovered attempting to pry open a safe in the McDonald's Restaurant in Mooresville, Indiana. They were taken into custody and appellant was charged and arraigned the same day. On September 21, 1976, the State filed a motion to amend the information by adding an habitual criminal count. The motion was granted on December 9. Appellant was arraigned on this count on March 17, 1977, and [268 Ind. 591] trial was commenced. He contends the trial court erroneously overruled his motion to dismiss the habitual criminal count because it was a matter of substance added after arraignment.
IC § 35-3.1-1-5 (Burns' 1975) provides that an information may be amended at any time before, during or after trial so long as it does not prejudice the substantial rights of the defendant. Three months after the motion to amend was granted appellant was arraigned on the habitual criminal charge. The trial court held a bifurcated trial in complete accordance with the requirements of Lawrence v. State (1972), 259 Ind. 306, 286 N.E.2d 830. The record in this case discloses that appellant was given adequate time to prepare a defense and that his rights have not been prejudiced. Furthermore, the habitual criminal statute, IC § 35-8-8-1 (Burns' 1975), does not impose punishment for a separate crime but provides a more severe penalty for the crime charged. Swinehart et al. v. State (1978) Ind., 376 N.E.2d 486; Eldridge v. State (1977), Ind., 361 N.E.2d 155. We therefore hold that the trial court was correct in permitting the information to be amended in that the new charge was not, by law, a separate crime and did not prejudice the substantial rights of the appellant.
Appellant also contends it was improper for the prosecutor to use the threat of habitual criminal charge as an inducement to appellant to accept a proposed plea bargain. This issue was recently decided by the United States Supreme Court in Bordenkircher v. Hayes (1978), 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604. In that case the Court held it was a proper exercise of the prosecutor's discretion to use the threat of filing an habitual criminal charge as part of the plea bargain negotiations so long as there was probable cause to believe the accused committed the offense. The Bordenkircher case is in accord with this
Page 630
State's view of the practice of plea bargaining. We therefore hold the trial court did not err in overruling appellant's motion to dismiss.Appellant next contends the trial court erred in overruling [268 Ind. 592] his motion for change of venue. Cr. 12 gives the trial court discretion to grant changes of venue in non-capital cases....
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Games v. State, No. 185
...after the filing of the original information, sentence enhancement under the habitual offender statute. In Howard v. State (1978), 268 Ind. 589, 377 N.E.2d 628, cert. denied (1978), 439 U.S. 1049, 99 S.Ct. 727, 58 L.Ed.2d 708, we held that permitting an information to be amended to charge h......
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Dorton v. State, No. 380S62
...the defendant's position. Hall v. State, (1980) Ind., 405 N.E.2d 530; Wise v. State, (1980) Ind., 400 N.E.2d 114; Howard v. State, (1978) 268 Ind. 589, 377 N.E.2d Defendant also argues that even though this issue has been decided adversely to him that these decisions are based on erroneous ......
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Davis v. State, No. PS
...as there is probable cause to believe the accused could be charged under the statute as an habitual offender. 6 Howard v. State (1978), 268 Ind. 589, 377 N.E.2d 628, cert. denied 439 U.S. 1049, 99 S.Ct. 727, 58 L.Ed.2d 708, citing Bordenkircher v. Hayes (1978), 434 U.S. 357, 98 S.Ct. 663, 5......
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Murphy v. State, No. 781S182
...with sufficient time to prepare his defense to that issue. Norris v. State, (1979) 271 Ind. 568, 394 N.E.2d 144; Howard v. State, (1978) 268 Ind. 589, 377 N.E.2d 628. See also McConnell v. State, (1982) Ind., 436 N.E.2d 1097, at I dissent from the majority opinion and would affirm the trial......
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Games v. State, No. 185
...after the filing of the original information, sentence enhancement under the habitual offender statute. In Howard v. State (1978), 268 Ind. 589, 377 N.E.2d 628, cert. denied (1978), 439 U.S. 1049, 99 S.Ct. 727, 58 L.Ed.2d 708, we held that permitting an information to be amended to charge h......
-
Dorton v. State, No. 380S62
...the defendant's position. Hall v. State, (1980) Ind., 405 N.E.2d 530; Wise v. State, (1980) Ind., 400 N.E.2d 114; Howard v. State, (1978) 268 Ind. 589, 377 N.E.2d Defendant also argues that even though this issue has been decided adversely to him that these decisions are based on erroneous ......
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Davis v. State, No. PS
...as there is probable cause to believe the accused could be charged under the statute as an habitual offender. 6 Howard v. State (1978), 268 Ind. 589, 377 N.E.2d 628, cert. denied 439 U.S. 1049, 99 S.Ct. 727, 58 L.Ed.2d 708, citing Bordenkircher v. Hayes (1978), 434 U.S. 357, 98 S.Ct. 663, 5......
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Murphy v. State, No. 781S182
...with sufficient time to prepare his defense to that issue. Norris v. State, (1979) 271 Ind. 568, 394 N.E.2d 144; Howard v. State, (1978) 268 Ind. 589, 377 N.E.2d 628. See also McConnell v. State, (1982) Ind., 436 N.E.2d 1097, at I dissent from the majority opinion and would affirm the trial......