Monday, June 27, 2011
Ind. Decisions - COA posts another opinion late this afternoon
In Jerrell D. White v. State, a 5-page opinion on rehearing, Judge Baker writes:
In this case, the appellant-defendant Jerrell D. White was convicted of theft for stealing a cash register and cash from a restaurant. He was also convicted of receiving stolen property for divvying up that cash with his accomplice. On March 9, 2011, a panel of this Court concluded that these two convictions violated the prohibition against double jeopardy. White v. State, 944 N.E.2d 532, 536-37 (Ind. Ct. App. 2011). Additionally, we vacated the habitual offender finding because one of White’s alleged prior felonies was committed when he was fifteen years old, and the State offered no evidence to show that he was charged and convicted as an adult. Id.
The State petitions for rehearing arguing that this Court should remand with instructions to the trial court to rehear evidence on the habitual offender enhancement. We grant the State’s petition and remand with instructions. * * *
In this case, the habitual offender enhancement was vacated because the State failed to show that White was convicted of the predicate offenses in adult court. More particularly, White was fifteen when he committed burglary and arson and “[a]lthough the documents from Nebraska appear to show that White was tried and convicted in adult court, there was no evidence introduced to establish those facts.” White, 944 N.E.2d at 537. Pursuant to Jaramillo, the State should be permitted to retry the habitual offender enhancement. Therefore, the State’s petition is granted and the cause is remanded to the trial court with instructions that it rehear evidence on the habitual offender enhancement. We affirm our original decision in all other respects.
Posted by Marcia Oddi on June 27, 2011 08:28 PM
Posted to Ind. App.Ct. Decisions