Poore v. State, No. 29A02-9211-CR-566

Docket NºNo. 29A02-9211-CR-566
Citation613 N.E.2d 478
Case DateMay 18, 1993
CourtCourt of Appeals of Indiana

Page 478

613 N.E.2d 478
Floyd P. POORE, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 29A02-9211-CR-566.
Court of Appeals of Indiana,
Second District.
May 18, 1993.

Page 479

Susan K. Carpenter, Public Defender, Ruth Johnson, Deputy Public Defender, Indianapolis, for appellant-defendant.

Pamela Carter, Atty. Gen., Deana M. McIntire, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

SHIELDS, Judge.

Floyd P. Poore appeals from the denial of his Motion to Correct Erroneous Sentence.

We reverse and remand.

ISSUES

Did the trial court err in denying Poore's Motion to Correct Erroneous Sentence?

FACTS

In 1987, Poore was convicted of one count of burglary, a class B felony, 1 and found to be an habitual offender. 2 He received a twenty-year sentence enhanced by thirty years. 3 In 1990, one of the prior felony convictions upon which the habitual offender finding was based was vacated in a post-conviction proceeding. On October 24, 1991, Poore filed a Motion to Correct Erroneous Sentence, pursuant to IC 35-38-1-15 (1988), in which he attached his habitual offender determination and enhanced sentence. In denying Poore's motion, the trial court stated:

While it may be argued that the Supreme Court did not specifically prohibit the use of a motion to correct erroneous sentence to challenge an habitual offender enhancement when an underlying conviction has been set aside, both the Bench and Bar have some responsibility to follow cues and suggestions which are clearly announced. Accordingly, the Court now finds that I.C. 35-38-1-15 is not an appropriate procedural mechanism to challenge an habitual offender enhancement whose underlying convictions have been vacated.

Record at 79.

Poore filed a Motion to Correct Errors. As alternative relief Poore requested the trial court to dismiss his Motion to Correct Erroneous Sentence, rather than to deny it, in order to avoid any res judicata effect should he seek post-conviction relief. The court denied Poore's Motion to Correct Errors; Poore appeals.

DISCUSSION

Poore contends that a motion to correct erroneous sentence pursuant to IC 35-18-1-15 is an appropriate procedural mechanism to challenge an habitual offender enhancement after an underlying conviction has been vacated.

Considerable confusion has existed as to the appropriate procedure to attack a sentence. In Thompson v. State (1979), 270 Ind. 677, 679, 389 N.E.2d 274, 276, our supreme court stated that in order to conserve judicial time and effort while speedily and efficiently affording justice to persons convicted of a crime, it would allow a defendant to attack his sentence by either a motion to correct an erroneous sentence or by a petition for post-conviction relief. However, the court also stated a preference for the post-conviction remedy because it would afford the benefit of "finally closing the door to post-conviction remedies." Id. Subsequently, the supreme court recognized that the discretion afforded a...

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8 practice notes
  • Poore v. State, No. 29S05-9708-PC-470
    • United States
    • Indiana Supreme Court of Indiana
    • August 29, 1997
    ...Poore's motion be dismissed without prejudice so that Poore could challenge the enhancement in postconviction relief. Poore v. State, 613 N.E.2d 478 On November 30, 1993, Poore petitioned for postconviction relief on the ground that the habitual offender enhancement was no longer valid as a......
  • Robinson v. State, No. 45S03-0307-PC-314.
    • United States
    • Indiana Supreme Court of Indiana
    • March 10, 2004
    ...White v. State, 793 N.E.2d 1127, 1129 (Ind. Ct.App.2003); Funk v. State, 714 N.E.2d 746, 748-49 (Ind.Ct.App.1999); Poore v. State, 613 N.E.2d 478, 480 (Ind.Ct.App. 1993); Browning v. State, 576 N.E.2d 1315, 1317 (Ind.Ct.App.1991); Powell v. State, 574 N.E.2d 331, 333 (Ind.Ct.App. 1991). Thi......
  • Kindred v. State, No. 55A01-9403-CR-74
    • United States
    • Indiana Court of Appeals of Indiana
    • August 4, 1994
    ...relief is the preferred procedure. See Reffett v. State (1991), Ind., 571 N.E.2d 1227, 1229; Poore v. State (1993), Ind.App., 613 N.E.2d 478. Contrary to the State's assertions, there is nothing inappropriate about Kindred's chosen method of presenting his consecutive sentencing question to......
  • State v. Arnold, No. 22A05–1408–CR–387.
    • United States
    • Indiana Court of Appeals of Indiana
    • February 27, 2015
    ...when an underlying conviction has been set aside and concluded that a postconviction proceeding is the proper route. Poore v. State, 613 N.E.2d 478, 480 (Ind.Ct.App.1993). In so holding, the Poore court clarified that Indiana Code Section 35–38–1–15 should be limited to those instances wher......
  • Request a trial to view additional results
8 cases
  • Poore v. State, No. 29S05-9708-PC-470
    • United States
    • Indiana Supreme Court of Indiana
    • August 29, 1997
    ...Poore's motion be dismissed without prejudice so that Poore could challenge the enhancement in postconviction relief. Poore v. State, 613 N.E.2d 478 On November 30, 1993, Poore petitioned for postconviction relief on the ground that the habitual offender enhancement was no longer valid as a......
  • Robinson v. State, No. 45S03-0307-PC-314.
    • United States
    • Indiana Supreme Court of Indiana
    • March 10, 2004
    ...White v. State, 793 N.E.2d 1127, 1129 (Ind. Ct.App.2003); Funk v. State, 714 N.E.2d 746, 748-49 (Ind.Ct.App.1999); Poore v. State, 613 N.E.2d 478, 480 (Ind.Ct.App. 1993); Browning v. State, 576 N.E.2d 1315, 1317 (Ind.Ct.App.1991); Powell v. State, 574 N.E.2d 331, 333 (Ind.Ct.App. 1991). Thi......
  • Kindred v. State, No. 55A01-9403-CR-74
    • United States
    • Indiana Court of Appeals of Indiana
    • August 4, 1994
    ...relief is the preferred procedure. See Reffett v. State (1991), Ind., 571 N.E.2d 1227, 1229; Poore v. State (1993), Ind.App., 613 N.E.2d 478. Contrary to the State's assertions, there is nothing inappropriate about Kindred's chosen method of presenting his consecutive sentencing question to......
  • State v. Arnold, No. 22A05–1408–CR–387.
    • United States
    • Indiana Court of Appeals of Indiana
    • February 27, 2015
    ...when an underlying conviction has been set aside and concluded that a postconviction proceeding is the proper route. Poore v. State, 613 N.E.2d 478, 480 (Ind.Ct.App.1993). In so holding, the Poore court clarified that Indiana Code Section 35–38–1–15 should be limited to those instances wher......
  • Request a trial to view additional results

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