State v. Turner
| Decision Date | 20 December 1978 |
| Docket Number | No. 2-678A184,2-678A184 |
| Citation | 178 Ind.App. 562,383 N.E.2d 428 |
| Parties | STATE of Indiana, Plaintiff-Appellant, v. Jerry Frank TURNER, Defendant-Appellee. |
| Court | Indiana Appellate Court |
Douglas D. Church, Church, Roberts & Beerbower, Noblesville, for defendant-appellee.
Appellant-plaintiff State of Indiana appeals from the trial court's denial of its motion to correct error. The State alleges it was error to sentence Jerry Frank Turner under Ind.Code 35-50-2-5 (Supp.1978) rather than Ind.Code 35-13-4-4 which was the statute in effect at the time the alleged offense was committed. 1
We affirm the conviction of Turner, but remand to the trial court with instructions to vacate his present sentence and to enter a sentence pursuant to the appropriate statute, IC 35-13-4-4.
Turner was charged with committing first degree burglary on August 15, 1974. The case was tried to the court, and Turner was found guilty on December 6, 1977, of first degree burglary as charged in the information. Sentencing was set for January 3, 1978.
On the day of sentencing, Turner expressed an election to be sentenced under IC 35-50-2-5 in lieu of the sentencing provisions found in IC 35-13-4-4. The trial court permitted this election and imposed a determinate sentence of ten (10) years in accordance with IC 35-50-2-5, instead of an indeterminate sentence of not less than ten (10) nor more than twenty (20) years as provided in IC 35-13-4-4.
The State presents us with only one issue for determination: Did the trial court erroneously sentence Turner by using the statute in force at the time of his sentencing instead of the statute in force when the alleged offense was committed.
Turner argues the new sentencing provisions found in IC 35-50-2-5 have an ameliorative The State, however, maintains that (1) the new sentencing provisions found in IC 35-50-2-5 are not amelioratory because the maximum period that may be imposed under this statute is the same as that found in IC 35-13-4-4; (2) the sentencing provisions of the new criminal code do not apply retroactively; and (3) the legislature has expressed a clear intent that the new criminal code's sentencing provisions not be applied to pre-code offenses.
effect and were, therefore, applicable. He contends the trial court did not abuse its discretion in accepting his election to be sentenced under IC 35-50-2-5.
CONCLUSION The trial court improperly sentenced Turner using the statute in force at the time of his sentencing rather than the statute in force when the crime was committed.
On August 15, 1974, the date of the offense, the following statute was in effect:
35-13-4-4. Burglary-Degrees. (a) Whoever breaks and enters into any dwelling house or other place of human habitation with the intent to commit any felony therein, or to do any act of violence or injury to any human being, shall be guilty of burglary in the first degree, and on conviction thereof shall be imprisoned not less than ten (10) years nor more than twenty (20) years and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period.
Effective October 1, 1977, Indiana's criminal code was revised. Under the present statutes, burglary is no longer defined in terms of degrees. The new criminal code defines all felonies as being either a class A, B, C, or D felony. The pertinent statutes now provide:
35-43-2-1. Burglary. A person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, a class C felony. However, the offense is a class B felony if it is committed while armed with a deadly weapon or if the building or structure is a dwelling, and a class A felony if it results in either bodily injury or serious bodily injury to any other person.
35-50-2-5. Class B felony. A person who commits a class B felony shall be imprisoned for a fixed term of ten (10) years, with not more than ten (10) years added for aggravating circumstances or not more than four (4) years subtracted for mitigating circumstances; in addition, he may be fined not more than ten thousand dollars ($10,000).
Statutes are to be construed as having prospective operation unless legislative language clearly indicates the statute was intended to be retrospective, Malone v. Conner (1963), 135 Ind.App. 167, 189 N.E.2d 590; therefore, as a general rule, we apply the statute which is in effect when the crime is committed. Wolfe v. State (1977), Ind.App., 362 N.E.2d 188. This rule is constitutionally required when a penalty is increased Ex post facto by amendment after the commission of the crime, Dowdell v. State (1975), Ind.App., 336 N.E.2d 699, since punishment cannot constitutionally be increased by a statute enacted after the commission of the offense. Hicks v. State (1898), 150 Ind. 293, 50 N.E. 27; Wolfe, supra; Dowdell, supra. However, Judge Staton, speaking for this court in Dowdell pointed out:
An exception to the general rule (of prospective operation) is recognized, in other jurisdictions and at least in dicta in previous Indiana cases, when punishment is lessened by amendment after the commission of the crime. Dowdell at 701.
Thus, our court will permit a defendant to be sentenced under a statute which is amended between the commission of the crime and the sentencing if that amendment is truly amelioratory. Wolfe, supra.
Turner asserts that IC 35-50-2-5 was designed to have an ameliorative effect. We are, however, unable to agree with Turner's assertion. It is only when the legislature enacts an amendment in which a lesser punishment is imposed as proper punishment for the commission for the same proscribed act that this amendment may be viewed as amelioratory. In a constitutional sense, the measure in determining whether one penalty is greater than another is the Maximum duration of the penalty, not the possible duration of imprisonment. Dotson v. State (1972), 258 Ind. 581, 282 N.E.2d 812; Boyd v. State (1971), 257 Ind. 443, 275 N.E.2d 797; Barbee v. State (1973),156 Ind.App. 431, 296 N.E.2d 884; McVea v. State (1973), 155 Ind.App. 499, 293 N.E.2d 786.
An examination of IC 35-13-4-4 and IC 35-50-2-5 discloses that under both statutes, the maximum penalty is twenty years; because the total period of possible confinement was not reduced, we find that the legislature did not have an ameliorative objective in enacting IC 35-50-2-5. We recognize that under these statutes, sentencing changed from indeterminate to determinate sentencing, but we will not speculate as to possible variances in the duration of imprisonment which may occur because of this change. The key factor is that the Maximum duration of the Penalty remained the same. Wolfe, supra. It is...
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Pier v. State
... ... Malone v. Conner (1963), 135 Ind.App. 167, 189 N.E.2d 590; therefore, as a general rule, we apply the statute which is in effect when the crime is committed. Wolfe v. State (1977), [173 Ind.App. 27], 362 N.E.2d 188.' State v. Turner (1978) Ind.App. , 383 N.E.2d 428." ... Pier's attempt to distinguish Shelton is unpersuasive. He was properly charged and sentenced under the statute in effect at the time of his crime ... Finally, Pier challenges the sufficiency of the evidence with regard to ... ...
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Shelton v. State
...we apply the statute which is in effect when the crime is committed. Wolfe v. State (1977), Ind.App., 362 N.E.2d 188." State v. Turner (1978), Ind.App., 383 N.E.2d 428. In the saving clause, enacted as part of the new code, Acts 1977, P.L. 340 § 150, the legislature expressed its "(a) Neith......
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Russell v. State
...the amendment of the punishment provisions in the statutes applicable to the case at bar is not truly ameliorative under State v. Turner (1978), Ind.App., 383 N.E.2d 428, which held that where the maximum duration of imprisonment for the offense was the same under the statute in effect when......
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State v. Palmer, 778S140
...Ind., 384 N.E.2d 1030; Rogers v. State, (1979) Ind., 383 N.E.2d 1035; Beasley v. State, (1977) Ind., 370 N.E.2d 360; State v. Turner, (1978) Ind.App., 383 N.E.2d 428. We accordingly hold that the trial court had no authority to enter an order suspending Palmer's sentence and was limited to ......