Tripp v. State, No. 43A03-9909-CR-345.

• Docket Nº: No. 43A03-9909-CR-345.
• Citation: 729 N.E.2d 1061
• Case Date: June 19, 2000
• Court: Court of Appeals of Indiana

729 N.E.2d 1061

Steven D. TRIPP, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff

No. 43A03-9909-CR-345.

Court of Appeals of Indiana.

June 19, 2000.

729 N.E.2d 1063

Robert J. Hardy, Thomas & Thomas, Waterloo, Indiana, Attorney for Appellant

Jeffrey A. Modisett, Attorney General of Indiana, Kostas A. Poulakidas, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

729 N.E.2d 1062

OPINION

MATTINGLY, Judge

Steven D. Tripp brings this interlocutory appeal from the trial court's denial of his motion to dismiss Count II of the State's amended information and his motion for jury trial made after the information was amended to include the second count. He raises two issues for our review.

1) Did the trial court comply with the requirements of Ind.Code § 35-34-1-5 when it permitted the State to amend its information to add an additional count less than a month before trial; and

2) Did the trial court err by denying Tripp's written demand for a jury trial first made at the initial hearing on the new count?

Affirmed in part, reversed in part, and remanded for trial by jury.

FACTS AND PROCEDURAL BACKGROUND

On August 2, 1998, Tripp was arrested and charged with operating a motor vehicle with a blood alcohol content greater than .10% (per se operating while intoxicated).¹ An initial hearing on this single count was held August 18, 1998 and a trial date was set for January 15, 1999. On January 11, 1999, Tripp requested, and the trial court granted, a continuance of the trial. A new trial date of June 10, 1999 was set.

On May 13, 1999, after the omnibus date² and twenty-eight days before trial, the State moved to amend the charging information to include an additional count of operating a motor vehicle while intoxicated.³ The trial court granted the State's motion and Tripp was notified of the amendment.

At the initial hearing on the new count, originally scheduled for May 25, 1999 but continued at Tripp's request to June 1, 1999, Tripp filed a motion for a jury trial and requested the court continue the trial. The trial court denied Tripp's motion for a jury trial as being untimely but continued the trial until August 2, 1999.

On June 14, 1999, Tripp renewed his motion for a jury trial and additionally moved that the new count of driving while intoxicated be dismissed. The trial court

729 N.E.2d 1064

heard arguments on June 30, 1999, took the matter under advisement, and granted the parties an opportunity to file post-hearing briefs. On July 26, 1999, the trial court denied Tripp's motion

On August 2, 1999, Tripp filed a motion to dismiss Count I of the information and to certify for interlocutory appeal the issues of whether the information was properly amended to include a second count and whether the trial court erred by denying his request for a jury trial. The trial court granted Tripp's motion dismissing Count I of the information, leaving only the added Count II, and certifying the two issues for appeal. This court accepted jurisdiction on October 26, 1999 to consider these issues.

DISCUSSION & DECISION

1. Proper Amendment

In criminal prosecutions, the charging information exists to guarantee the accused certain protections. Taylor v. State, 677 N.E.2d 56, 67 (Ind.Ct.App.1997). The charging information must state with particularity the date and location of the alleged offense as well as set forth the specific name of that offense, a citation to the statutory provision alleged to have been violated, and the elements of the offense charged. Ind.Code § 35-34-1-2. The purpose of the information is to apprise the accused of the nature of the accusation made so that preparations for mounting a defense can be made. Wine v. State, 637 N.E.2d 1369, 1375 (Ind.Ct.App. 1994). Additionally, the information provides a basis for a double jeopardy defense in the event of a subsequent prosecution. Taylor, 677 N.E.2d at 67.

An information may be amended pursuant to Ind.Code § 35-34-1-5⁴ as to matters of both form and substance. As a general rule, an information may not be amended so as to change the theory of the case or the identity of the offense charged. Sides v. State, 693 N.E.2d 1310, 1313 (Ind. 1998). However, an amendment that does not prejudice substantial rights of the defendant is permissible. These substantial rights include the right to notice and an opportunity to be heard and contest the amendment. Davis v. State, 714 N.E.2d 717, 721-22 (Ind.Ct.App.1999). For substantive amendments, the court shall grant a continuance, if requested, to allow the defendant adequate time to prepare for trial. State v. Gullion, 546 N.E.2d 121, 123 (Ind.Ct.App.1989).

The amendment of the information in this case to include an additional charge is one of substance as the change was essential to making a valid charge of the crime. Gibson v. State, 694 N.E.2d 748, 756 (Ind.Ct.App.1998), aff'd in relevant part, 702 N.E.2d 707 (Ind.1998). Such amendments are permissible provided the substantial rights noted above are not offended. Davis, 714 N.E.2d at 722. In this case, Tripp's substantial rights were not prejudiced by the amendment as he was given notice of the amended information,

729 N.E.2d 1065

he was given an opportunity to challenge the amendment, and the trial court continued the trial to give Tripp adequate time to prepare his defense to the new charge

By inviting the parties to submit briefs and by hearing arguments, the trial court gave Tripp an opportunity to contest the amended information. The...