State v. Hicks

• Decision Date: 30 September 1983
• Docket Number: No. 283S33,283S33
• Citation: 453 N.E.2d 1014
• Parties: STATE of Indiana, Appellant, v. William HICKS, Appellee.
• Court: Indiana Supreme Court

Page 1014

453 N.E.2d 1014

STATE of Indiana, Appellant, v. William HICKS, Appellee.

No. 283S33.

Supreme Court of Indiana.

Sept. 30, 1983.

Linley E. Pearson, Atty. Gen. of Ind., Indianapolis, John H. Meyers, Pros. Atty. for the 23rd Judicial Circuit, Lafayette, for appellant.

Susan K. Carpenter, Public Defender of Ind., C.H. Gardner, Deputy Public Defender, Indianapolis, for appellee.

GIVAN, Chief Justice.

The State brings this appeal following the granting of appellee William Hicks' Motion to Dismiss the habitual offender count of a criminal information.

The facts are these. Hicks and two accomplices burglarized a dwelling in Tippecanoe County. An information charging all three with Burglary and Attempted Theft was filed on August 10. The arraignment was set for August 23. At the hearing held on that date, Hicks entered a plea of guilty to both counts which the court accepted.

On August 31, the prosecutor filed an "Information of Habitual Offender" as to Hicks. The essential allegation of this pleading was that Hicks had accumulated three prior unrelated felony convictions.

On September 8, Hicks filed a Motion to Dismiss the Habitual Offender Allegations. The court heard argument on the motion at the September 20 sentencing hearing and also entertained an oral motion from the prosecutor to amend the information originally filed. This motion was denied. On September 24, the court granted Hicks' Motion to Dismiss. On September 29, the State filed a written Motion to Amend, but it was also denied. Hicks was sentenced to a twenty year term of imprisonment upon conviction on the burglary charge. The State timely perfected its appeal.

Appellee Hicks contends on several grounds this Court has no jurisdiction to hear this appeal and also that the State has no right to appeal this case.

Hicks argues we should dismiss the appeal for the State's failure to include a jurisdictional statement in its brief. Ind.R.App.P. 8.3(A)(2) states:

"When a direct appeal (other than in a criminal action ) is taken to the Supreme Court there shall be included under a heading entitled 'Jurisdiction of the Supreme Court,' a brief statement of why, in appellant's opinion, the Supreme Court has jurisdiction to hear the direct appeal." (Emphasis added.)

The State correctly points out since this is an appeal "in a criminal action," notwithstanding the fact it is an appeal by the State, no jurisdictional statement is required in the appellant's brief under the rule.

Hicks asserts jurisdiction in this Court cannot be found anywhere in Ind.R.App.P. 4(A), which sets out the kinds of appeals in which this Court has exclusive jurisdiction. The rule reads in part:

"(A) Appeals from Final Judgments. Appeals may be taken by either party from all final judgments of circuit, superior, probate, criminal, juvenile, county, and where provided by statute for municipal Courts. A ruling or order by the trial court granting or denying a motion to correct errors shall be deemed a final judgment, and an appeal may be taken therefrom. The Supreme Court shall have exclusive jurisdiction of:

* * *

* * *

"(7) Appeals in criminal cases from judgments (sentences) imposing a sentence of death, life imprisonment or a minimum sentence of greater than ten years. If the appeal is from the denial of post-conviction relief, jurisdiction shall be determined by reference to the sentence originally imposed." Id.

Hicks is incorrect. In the case at bar this is an appeal from a judgment or a sentence for more than ten years imprisonment and hence this Court has exclusive jurisdiction over the appeal pursuant to Appellate Rule 4(A)(7).

Hicks contends the State has no right to appeal in this case because it is not the kind of case from which an appeal by the State is allowed. He correctly points out the State's right to appeal in criminal cases is purely statutory. State v. Holland, (1980) Ind., 403 N.E.2d 832; State v. Sierp, (1973) 260 Ind. 57, 292 N.E.2d 245. The statute governing the State's right to appeal in criminal cases is I.C. Sec. 35-1-47-2 [Burns 1982 Supp.]. In pertinent part it reads:

"Appeal by state. Appeals to the supreme court or to the court of appeals, if the court rules so provide, may be taken by the state in the following cases:

(1) From an order granting a motion to dismiss an indictment or information." Id.

We disagree with Hicks that this appeal does not fall within the purview of the statute. It is clear upon examining the State's brief and its Motion to Correct Errors that the error the State claims was committed by the trial court was its grant of Hicks Motion to Dismiss the information adding an habitual offender allegation to the original charge. Accordingly, this appeal is authorized under I.C. Sec. 35-1-47-2(1) as an appeal "[f]rom an order granting a motion to dismiss an ... information."

He argues the State waived any objection to this ruling by failing to preserve the error for review. See, e.g., McCraney v. State, (1981) Ind., 425 N.E.2d 151; Stubblefield v. State, (1979) 270 Ind. 421, 386 N.E.2d 665. Hicks contends at the August 23 arraignment when he entered his guilty plea and the State made known its intent to file an habitual offender allegation, the State should have objected to the acceptance of Hicks' guilty plea, or asked for a continuance of the arraignment, or dismissed the charges and refiled them later with the habitual offender allegation added, in order to preserve the error now claimed.

The error claimed is the trial court's September 24 grant of the Motion to Dismiss. We are at a loss to understand how the State could waive an objection regarding that ruling by its conduct at a proceeding conducted almost one month earlier, when neither the Motion to Dismiss nor the amendment it attacked had yet been filed.

Turning to the issue on the merits of whether the trial court erred in granting the Motion to Dismiss, we look first to the habitual offender statute, I.C. Sec. 35-50-2-8 [Burns 1982 Supp.]. It reads in pertinent part:

"Habitual offenders.--(a) The state may seek to have a person sentenced as an habitual offender for any felony by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated two prior unrelated felony convictions.

(b) After he has been convicted and sentenced for a felony committed after sentencing for a prior unrelated felony conviction, a person has accumulated two prior unrelated felony convictions. However, a conviction does not count, for purposes of this subsection, if:

(1) It has been set aside; or

(2) It is one for which the person has been pardoned.

(c) If the person was convicted of the felony in a jury trial, the jury shall reconvene for the sentencing hearing; if the trial was to the court, or the judgment was entered on a guilty plea, the court alone shall conduct the sentencing hearing, under I.C. Sec. 35-4.1-4-3 [35-50-1A-3]." Id.

We have held the statute provides a mechanism for the enhancement of a sentence imposed upon conviction on the underlying felony when it is proven the defendant has accumulated two prior unrelated felony convictions. Yager v. State, (1982) Ind., 437 N.E.2d 454; Griffin v. State, (1981) Ind., 415 N.E.2d 60. The statute does not name a crime in and of itself. Funk v. State, (1981) Ind., 427 N.E.2d 1081; Griffin, supra; Hall v. State, (1980) Ind., 405 N.E.2d 530.

Also, relevant to our consideration of this appeal is I.C. Sec. 35-3.1-1-5 [Burns 1979 Repl.] (repealed by Indiana Acts 1981, P.L. 298, Sec. 9), in force at the time of appellant's arraignment and sentencing. That statute provided for amendment of a criminal information or indictment. It provides:

"Amendment of charge.--(a) An indictment or information which charges the commission of an offense shall not be dismissed but may be amended on motion by the prosecutor at any time because of any immaterial defect, including:

(1) Any miswriting, misspelling, or grammatical error;

(2) Any misjoinder of parties defendant or offenses charged;

(3) The presence or absence of any unnecessary or repugnant allegation;

(4) The failure to negative any exception, excuse, or proviso contained in the statute defining the offense;

(5) The use of alternative or disjunctive allegations as to the acts, means, intents, or results charged;

(6) Any mistake in the name of the court or county in the title of the action, or the statutory provision alleged to have been violated;

(7) The failure to state the time or place at which the offense was committed where time or place is not of the essence of the offense;

(8) The failure to state an amount of value or price of any matter where such value or price is not of the essence of the offense; or

(9) Any other defect which does not prejudice the substantial rights of the defendant.

(b) The indictment or information may be amended in matters of substance or form by the prosecutor upon giving notice to the defendant and with the consent of the court, at any time before arraignment. When the information or indictment is amended, it shall be signed by the prosecuting attorney.

(c) Upon motion of the prosecutor the court may at any time before, during, or after the trial permit an amendment to the indictment or information in respect to any defect, imperfection, or omission in form which does not prejudice the substantial rights of the defendant.

(d) Before amendment of any indictment or information other than amendment as provided in subsection (b) of this section, the court shall give all parties adequate notice of the intended amendment and an opportunity to be heard. Upon permitting such amendment, the court shall, upon motion by the defendant, order any adjournment or postponement of the proceedings which may, by reason of such amendment, be necessary to accord the defendant adequate opportunity to prepare his defense.

(e) Notwithstanding any other provision in this section, an indictment or information...