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Thursday, May 22, 2008

Ind. Decisions - Supreme Court issues two late this afternoon

In Rosalio Pedraza v. State of Indiana, a 7-page, 5-0 opinion, Chief Justice Shepard writes:

Appellant Rosalio Pedraza contends that the trial court improperly used the same prior conviction both as an element of one of his present offenses and as an aggravating circumstance supporting an increased sentence. We conclude that under Indiana’s new “advisory” sentencing scheme, such use of a prior conviction does not amount to an impermissible double enhancement.
In Michael Sweatt v. State of Indiana, a 9-page opinion, Chief Justice Shepard writes:
Michael Sweatt appeals from convictions for possession of a handgun by a serious violent felon and burglary. He argues that the trial court erred by enhancing his sentence for burglary under the general habitual offender statute based on the same prior felony conviction supporting the serious violent felon count. While we conclude that the enhancements themselves were proper, it nonetheless constituted error to order Sweatt’s sentences to run consecutively, creating a double enhancement similar to the one we disapproved in Mills v. State. * * *

Conclusion. We affirm Sweatt’s convictions. We summarily affirm the Court of Appeals’ disposition of Sweatt’s other allegations of error. Ind. Appellate Rule 58(A). Except as otherwise indicated, we affirm.

Sullivan, and Rucker, JJ., concur.
Boehm, J., concurs in part and dissents in part with separate opinion, in which Dickson, J., concurs. [which begins on p. 6 of 9] I respectfully dissent. In Pedraza v. State, No. 49S04-0711-CR-516, ___ N.E.2d ___ (Ind. May 22, 2008), also decided today, this Court holds that the same prior conviction may serve to elevate a charge and as an aggravating circumstance at sentencing. In this case, the majority holds that the same prior felony may constitute an element of the crime of unlawful possession of a firearm by a serious violent felon, Ind. Code § 35-47-4-5 (2004), and also support a finding that the defendant is a habitual criminal under section 35-50-2-8. Slip op. at 5-6. But the majority holds that if the two convictions occur in the same trial, consecutive sentences cannot be imposed. Id. at 5. For several reasons, I do not believe the statutes support the second conclusion.

Posted by Marcia Oddi on May 22, 2008 04:42 PM
Posted to Ind. Sup.Ct. Decisions