Rodriguez v. State, No. 2-678A181

Docket NºNo. 2-678A181
Citation179 Ind.App. 464, 385 N.E.2d 1208
Case DateMarch 01, 1979
CourtCourt of Appeals of Indiana

Page 1208

385 N.E.2d 1208
179 Ind.App. 464
Ruben Velencia RODRIGUEZ, Appellant,
v.
STATE of Indiana, Appellee.
No. 2-678A181.
Court of Appeals of Indiana, Fourth District.
March 1, 1979.

[179 Ind.App. 465]

Page 1209

J. Bayne Burton, Anderson, for appellant.

Theo. L. Sendak, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

On October 17, 1977, Defendant Rodriguez was charged by Information with the offense of Robbery While Armed with a Deadly Weapon (a knife), a Class B felony, under IC 35-42-5-1 (effective October 1, 1977). On January 12, 1978, after trial by jury a verdict was returned finding the Defendant guilty of "robbery", for which the trial court sentenced him to a term of 10 years.

ISSUE:

The sole issue presented in the Motion to Correct Errors is whether the trial court imposed the correct sentence in conformity with the law and the verdict of the jury. (Defendant also raised this issue in the trial court by his motion to correct the sentence.)

We reverse as to the sentence.

FACTS:

The Information in this case, in pertinent part, read as follows:

"On or about the 16th day of October, 1977, in Madison County, in the State of Indiana, RUBEN VALENCIA RODRIGUEZ and WILLIAM EUGENE COLLINS did knowingly and by using and threatening the use of force on KEITH ANTHONY SCHIMMEL, to-wit: putting a knife to him and threatening to kill him, take property, to-wit: United States Currency from KEITH ANTHONY SCHIMMEL;

[179 Ind.App. 466] All of which is contrary to the form of the statute in such cases made and provided, to-wit: Indiana Code 35-42-5-1, and against the peace and dignity of the State of Indiana." 1

Page 1210

The statute upon which the Information was based reads:

"A person who knowingly or intentionally takes property from another person or from the presence of another person:

(1) by using or threatening the use of force on any person; or

(2) by putting any person in fear; commits robbery, a Class C felony. However, the offense is a Class B felony if it is committed while armed with a deadly weapon, and a Class A felony if it results in either bodily injury or serious bodily injury to any other person."

All of the instructions given by the trial court by which said court attempted to define the elements of the crime charged were incomplete and erroneous in that they cited only the elements of the lesser offense of simple robbery. 2 (For clarity, we refer herein to the Class C felony [179 Ind.App. 467] of robbery as "simple robbery" and to the more serious Class B felony as "armed robbery".) One instruction, which was given both as a preliminary and a final instruction, Without objection by the State, is set forth below:

"The Statute of the State of Indiana defines the crime of Robbery, So far as is applicable to the information in this cause, as follows:

'A person who knowingly or intentionally takes property from another person or from the presence of another person:

(1) By using or threatening the use of force on any person; or

(2) By putting any person in fear;

commits robbery, a class B felony.' " 3 (our emphasis)

In addition, the court gave the following final instruction which was Tendered by the State :

"The material elements of the offense of Robbery under the information as drawn in this case which must be proved beyond a reasonable doubt by the State of Indiana are:

1. That the defendant knowingly took property;

2. From another person;

3. By using force or threatening the use of force on any person." (our emphasis)

After deliberation, the jury returned a verdict finding the Defendant "guilty of robbery". The court, before entering judgment, conducted a hearing on aggravating and mitigating circumstances and concluded that the aggravating circumstances were "worthy of being set-off" against the mitigating circumstances. It then pronounced the following judgment:

" * * * the jury having returned a verdict of guilty on January 12, 1978, and the Court having heard evidence on aggravating and mitigating circumstances the Court hereby sentences the Defendant[179 Ind.App. 468] to a term of 10 years to the Indiana Department of Corrections. * * * "

The sentence of 10 years imposed by the court was based on a conviction for armed robbery, a Class B felony. IC 35-50-2-5 provides for a penalty for a Class B felony of a fixed term of 10 years with not more than 10 years added for aggravating circumstances or not more than four years subtracted for mitigating circumstances. The penalty for the violation of a Class C felony (simple robbery) is a fixed term of five years with not more than three years added for aggravating circumstances or not more than three years subtracted for mitigating circumstances. IC 35-50-2-6.

Page 1211

DECISION:

The Defendant alleges that the court's sentence was erroneous because it was based on the premise that the Defendant had been convicted of armed robbery when in fact he was convicted of simple robbery. We must agree with the Defendant's assertion.

It appears from the face of the Information that the State probably was attempting to charge the offense of armed robbery. Nevertheless, we are forced to conclude from the record that the Defendant was not prosecuted for that offense but, rather, for the lesser offense of simple robbery. Although the State did not formally move to amend the information to charge simple rather than armed robbery either prior to or during the course of the trial, the instructions given by the court and approved by the State created the same effect.

The jury was advised by the court's instructions both at the outset and at the close of the case of the elements necessary to support a verdict of guilty of the crime charged. These instructions did not include the element of being "armed with a deadly weapon" during the commission of the robbery. Clearly, then, these instructions did not precisely correspond to the charging Information but rather were narrower and served to advise the jury that It need find only the elements of simple robbery to find the Defendant guilty as charged. By failing to object to the court's instructions as being incomplete, erroneous or misleading, and by failing to tender a more comprehensive and accurate instruction covering the elements of armed [179 Ind.App. 469] robbery, the State, in effect, elected to prosecute only for...

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11 practice notes
  • Brown v. State, No. 49A02-9010-PC-626
    • United States
    • Indiana Court of Appeals of Indiana
    • March 3, 1992
    ...cases with traditional concepts regarding the duty of the court to give instructions. As noted in Rodriguez v. State (1979) 4th Dist., 179 Ind.App. 464, 385 N.E.2d 1208, 1211, it is the duty of the trial court to correctly and completely present the applicable law to the jury so that the ju......
  • Ben-Yisrayl v. State, No. 49S00-9307-PD-826.
    • United States
    • Indiana Supreme Court of Indiana
    • November 8, 2000
    ...only with a theory it chose not to pursue, namely burglary with bodily injury." Id. at 55. The defendant cites Rodriguez v. State, 179 Ind.App. 464, 385 N.E.2d 1208 (1979), for the proposition that "the State is bound by the charges it brings and allows instruction on." Brief......
  • Street v. State, No. 29A02-8912-CR-652
    • United States
    • Indiana Court of Appeals of Indiana
    • September 12, 1990
    ...a Class B felony robbery when the general jury verdict could only be returned for a Class C felony robbery. Rodriguez v. State (1979), 179 Ind.App. 464, 385 N.E.2d 1208. We find the facts of this case In Rodriguez, the information charged the defendant with armed robbery. The instructions o......
  • McKinney v. State, No. 71A03-8902-CR-45
    • United States
    • Indiana Court of Appeals of Indiana
    • May 3, 1990
    ...has a duty to instruct the jury on all matters of law necessary for their information in giving the verdict. Rodriguez v. State (1979), 179 Ind.App. 464, 469, 385 N.E.2d 1208, 1211. The tendered instruction was correct as far as it went. Its tender was sufficient to alert the court to its d......
  • Request a trial to view additional results
11 cases
  • Brown v. State, No. 49A02-9010-PC-626
    • United States
    • Indiana Court of Appeals of Indiana
    • March 3, 1992
    ...cases with traditional concepts regarding the duty of the court to give instructions. As noted in Rodriguez v. State (1979) 4th Dist., 179 Ind.App. 464, 385 N.E.2d 1208, 1211, it is the duty of the trial court to correctly and completely present the applicable law to the jury so that the ju......
  • Ben-Yisrayl v. State, No. 49S00-9307-PD-826.
    • United States
    • Indiana Supreme Court of Indiana
    • November 8, 2000
    ...only with a theory it chose not to pursue, namely burglary with bodily injury." Id. at 55. The defendant cites Rodriguez v. State, 179 Ind.App. 464, 385 N.E.2d 1208 (1979), for the proposition that "the State is bound by the charges it brings and allows instruction on." Brief......
  • Street v. State, No. 29A02-8912-CR-652
    • United States
    • Indiana Court of Appeals of Indiana
    • September 12, 1990
    ...a Class B felony robbery when the general jury verdict could only be returned for a Class C felony robbery. Rodriguez v. State (1979), 179 Ind.App. 464, 385 N.E.2d 1208. We find the facts of this case In Rodriguez, the information charged the defendant with armed robbery. The instructions o......
  • McKinney v. State, No. 71A03-8902-CR-45
    • United States
    • Indiana Court of Appeals of Indiana
    • May 3, 1990
    ...has a duty to instruct the jury on all matters of law necessary for their information in giving the verdict. Rodriguez v. State (1979), 179 Ind.App. 464, 469, 385 N.E.2d 1208, 1211. The tendered instruction was correct as far as it went. Its tender was sufficient to alert the court to its d......
  • Request a trial to view additional results

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