Moon v. State
| Decision Date | 12 September 1977 |
| Docket Number | No. 277S134,277S134 |
| Citation | 267 Ind. 27,366 N.E.2d 1168 |
| Parties | George MOON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Terry E. Johnston, Valparaiso, for appellant.
Theodore L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant, while serving a life sentence at the Indiana State Prison in Michigan City, attempted to take the warden of that institution hostage. Appellant was charged with kidnapping, Ind.Code § 35-1-55-1 (Burns 1975), and kidnapping for ransom, Ind.Code § 35-1-55-3 (Burns 1975). Pursuant to a plea bargain agreement, a third count of commission of a felony while armed: kidnapping, Ind.Code § 35-12-1-1 (Burns 1975), was filed; appellant entered a guilty plea to this count and received a determinate fifteen year sentence. He appeals, seeking a determination that he was entitled to credit, against his fifteen year sentence, for time spent in prison serving his life sentence between the arrest and sentencing of appellant for this offense.
We need not consider the issue raised by appellant. In Coleman v. State, (1975), Ind., 339 N.E.2d 51, this Court held:
(Citations omitted.) 339 N.E.2d at 56.
If kidnapping is not encompassed within the armed felony statute, Ind.Code § 35-12-1-1, then no such offense as "armed kidnapping" exists. That being so, a conviction for "armed kidnapping" is a nullity. Conviction of a non-existent crime is fundamental error, Young v. State, (1967) 249 Ind. 286, 231 N.E.2d 797, which error, if apparent on the face of the record, cannot be ignored by the reviewing court. Hudson v. State, (1976) Ind., 354 N.E.2d 164; Swininger v. State, (1976) Ind., 352 N.E.2d 473; Franks v. State, (1975) 262 Ind. 649, 323 N.E.2d 221; Kleinrichert v. State, (1973) 260 Ind. 537, 297 N.E.2d 822; Vawter v. State, (1972) 258 Ind. 168, 279 N.E.2d 805. We have no choice but to vacate appellant's conviction. In doing so we are not unmindful that appellant probably does not desire this relief, but correction of fundamental error is not intended for the advantage of the accused. Bartone v. United...
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Johnson v. State
...id.; Rhode v. State (1979), 181 Ind.App. 265, 391 N.E.2d 666. Conviction of a nonexistant crime is fundamental error. Moon v. State (1977), 267 Ind. 27, 366 N.E.2d 1168. As we understand Johnson's analogy, the statute defining the offense of burglary imposes an additional element of proof w......
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Johnston v. State
...purportedly illegal sentences, correction of fundamental error is not intended for the advantage of the accused. Moon v. State, 267 Ind. 27, 29, 366 N.E.2d 1168, 1169 (1977). Finally, "[i]t is the duty of appellate courts to bring illegal sentences into compliance ... 'even if such correcti......
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Burgess v. State
...Nevertheless, he urges that review of this alleged error is appropriate under the fundamental error doctrine. He cites Moon v. State, (1977) 267 Ind. 27, 366 N.E.2d 1168, in support of his contention. The defendant in Moon, pursuant to a plea agreement, had pleaded guilty to armed kidnappin......
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Jackson v. State
...Court has long recognized that a "[c]onviction [for] a non-existent crime is fundamental error" and "a nullity." Moon v. State , 267 Ind. 27, 366 N.E.2d 1168, 1168-69 (1977). Indeed, as our Supreme Court has made clear, a conviction where "[t]here is no such offense" in the Indiana Code "do......