Malone v. State
| Decision Date | 10 December 1998 |
| Docket Number | No. 49A05-9805-CR-250,49A05-9805-CR-250 |
| Citation | 702 N.E.2d 1102 |
| Parties | Lavelle MALONE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Appellant-Defendant, Lavelle Malone ("Malone"), appeals the trial court's denial of his motion to dismiss. We affirm.
Malone raises one issue for our review which we restate as: whether the trial court properly denied his motion to dismiss where the State dismissed the original charge of criminal recklessness after the omnibus date and refiled the charge as attempted murder.
The facts most favorable to the judgment show that on the evening of June 19, 1996, gunshots were fired into the residence of Rose Songor ("Songor"), Malone's former girlfriend. The previous week, Malone had threatened to kill Songor if she broke off their relationship. On June 26, 1996, Malone was charged with the murder of Clifton Hollonquest, which also occurred on June 19, 1996. Malone was charged with Murder (count I) and Carrying a Handgun Without a License (count II), both relating to Hollonquest's death, and Intimidation (count III) and Criminal Recklessness (count IV), both relating to the shots fired into Songor's residence. In a separate information, the handgun count was charged as a class C felony (count V) due to Malone's alleged prior felony conviction. Malone was also charged with being an habitual offender. The omnibus date was set for August 14, 1996.
On September 22, 1996, Malone moved to have counts I and II ("Hollonquest charges") severed from counts III and IV ("Songor charges"), which the trial court granted. The State amended the information to include only counts I and II. On August 8, 1997, the State moved to dismiss counts III and IV, stating "State declines Prosecution." R. 62.
Malone's jury trial on the Hollonquest charges began on August 11, 1997. On August 12, 1997, the State charged Malone with Attempted Murder and Intimidation ("refiled Songor charges") in place of the dismissed Songor charges. Malone was found guilty on the Hollonquest charges on August 14, 1997 and was found to be an habitual offender. 1 On August 29, 1997, Malone was charged with being an habitual offender regarding the refiled Songor charges. The omnibus date was set for October 28, 1997. R. S3.
On March 2, 1998, Malone filed a motion to dismiss the Attempted Murder charge, alleging a violation of Ind.Code § 35-34-1-5(b), which motion was denied. The trial court certified the order for interlocutory appeal and stayed further proceedings. We accepted jurisdiction of the appeal.
A prosecuting attorney is authorized to obtain a dismissal at any time before sentencing, and the granting of such a motion does not of itself bar a subsequent trial of the defendant for the same offense. Ind.Code § 35-34-1-13; Joyner v. State, 678 N.E.2d 386, 393 (Ind.1997). Absent the attachment of jeopardy, the State's dismissal of criminal charges does not preclude it from refiling and prosecuting a charge for the identical offense. Id. A trial court has no discretion to deny such a motion to dismiss. Id.
The State may not refile if doing so will prejudice the substantial rights of the defendant. Davenport v. State, 689 N.E.2d 1226, 1229 (Ind.1997), reh'g granted in part 696 N.E.2d 870 (Ind.1998). The State does not necessarily prejudice a defendant's substantial rights when, on the refiled information, it amends the original information but charges the same offense. Id. The defendant's substantial rights are not prejudiced in this situation primarily because the defendant can receive a fair trial on the same facts and employ the same defense in the second trial as in the first. Id. The State is "entitled to amend charges, even as to theory and identity ... when it can be done without prejudicing the substantial rights of the accused." State v. Gullion, 546 N.E.2d 121, 123 (Ind.Ct.App.1989) () (quoting Trotter v. State, 429 N.E.2d 637, 640-41 (Ind.1981)).
Malone argues that the trial court erred in denying his motion to dismiss in contravention of Ind.Code § 35-34-1-5. 2 He contends that the State's dismissal and refiling was an attempt to avoid the operation of the statute. Ind.Code Section 35-34-1-5(b) states, in part:
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 ... before the omnibus date.
In his Appellant's Brief, Malone seems to admit that the State did not actually amend the information, but sought to avoid amending by dismissing and refiling. This being the case, the operation of Ind.Code § 35-34-5-1 is not implicated. 3 See Willoughby v. State, 660 N.E.2d 570, 577 (Ind.1996).
Malone also argues that his substantial rights were violated when the State dismissed the Criminal Recklessness charge and refiled it as Attempted Murder. He contends that the State sought to avoid an adverse ruling, which he asserts the State would have received had it attempted to amend the information to add the Attempted Murder charge. Malone cites Davenport in support of this contention. In Davenport, however, our supreme court found that the State's dismissal and refiling was an attempt to avoid an adverse ruling it had already received in the original trial court when it attempted to amend the information. Davenport, 689 N.E.2d at 1230. Unlike in Davenport, the State here received no adverse ruling. The State was not seeking to "escape the ruling of the original court." Id.; see also Beason v. State, 690 N.E.2d 277, 280 n. 9 (Ind.1998) ().
Malone also argues that permitting the State to refile the Attempted Murder charge substantially prejudices him because the new charge is a class A felony, whereas the Criminal Recklessness was a class D felony. Malone only contends that he faced more severe charges, not that he was deprived of a fair trial. We note that the State refiled the Songor charges on August 12, 1997 and that Malone's trial date was originally set for November 24, 1997. On November 19, 1997, Malone requested a continuance, and the trial date was vacated and reset for March 23, 1998. Malone filed his motion to dismiss on March 2, 1998, which was denied at a hearing held on March 18, 1998. Malone then requested a continuance, and the trial date was again vacated and reset for July 13, 1998. The trial court subsequently certified the order for interlocutory appeal.
Malone's trial date was eventually reset to eleven months after he was charged with Attempted Murder; thus, he cannot say he did not have "adequate time...
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