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  1. #1
    Join Date
    Oct 2009
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    18

    Default Habitual Offender

    In the state of Indiana. Person has at least 4 drunk driving convictions. Person has a Sexual battery (Felony) conviction, served time, released.

    Has now been charged with C-felony Criminal Confinement, D-Felony Criminal Confinement and Intimidation.

    If found guilty on these charges, can they be considered by the state to be a Habitual Offender, given that the DUI 3rd offense would be a felony?

  2. #2
    Join Date
    Sep 2005
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    73,556

    Default Re: Habitual Offender

    If you're telling us that he has two prior felony convictions, then this would be his third felony charge.
    Quote Quoting IC 35-50-2-8 - Habitual offenders
    (a) Except as otherwise provided in this section, the state may seek to have a person sentenced as a habitual offender for any felony by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated two (2) prior unrelated felony convictions.

    (b) The state may not seek to have a person sentenced as a habitual offender for a felony offense under this section if:
    (1) the offense is a misdemeanor that is enhanced to a felony in the same proceeding as the habitual offender proceeding solely because the person had a prior unrelated conviction;

    (2) the offense is an offense under IC 9-30-10-16 or IC 9-30-10-17; or

    (3) all of the following apply:
    (A) The offense is an offense under IC 16-42-19 or IC 35-48-4.

    (B) The offense is not listed in section 2(b)(4) of this chapter.

    (C) The total number of unrelated convictions that the person has for: not listed in section 2(b)(4) of this chapter.
    (i) dealing in or selling a legend drug under IC 16-42-19-27;
    (ii) dealing in cocaine or a narcotic drug (IC 35-48-4-1);
    (iii) dealing in a schedule I, II, III controlled substance (IC 35-48-4-2);
    (iv) dealing in a schedule IV controlled substance (IC 35-48-4-3); and
    (v) dealing in a schedule V controlled substance (IC 35-48-4-4);
    does not exceed one (1).
    (c) A person has accumulated two (2) prior unrelated felony convictions for purposes of this section only if:
    (1) the second prior unrelated felony conviction was committed after sentencing for the first prior unrelated felony conviction; and

    (2) the offense for which the state seeks to have the person sentenced as a habitual offender was committed after sentencing for the second prior unrelated felony conviction.
    (d) A conviction does not count for purposes of this section as a prior unrelated felony conviction if:
    (1) the conviction has been set aside;

    (2) the conviction is one for which the person has been pardoned; or

    (3) all of the following apply:
    (A) The offense is an offense under IC 16-42-19 or IC 35-48-4.

    (B) The offense is not listed in section 2(b)(4) of this chapter.

    (C) The total number of unrelated convictions that the person has for:
    (i) dealing in or selling a legend drug under IC 16-42-19-27;
    (ii) dealing in cocaine or a narcotic drug (IC 35-48-4-1);
    (iii) dealing in a schedule I, II, III controlled substance (IC 35-48-4-2);
    (iv) dealing in a schedule IV controlled substance (IC 35-48-4-3); and
    (v) dealing in a schedule V controlled substance (IC 35-48-4-4);
    does not exceed one (1).
    (e) The requirements in subsection (b) do not apply to a prior unrelated felony conviction that is used to support a sentence as a habitual offender. A prior unrelated felony conviction may be used under this section to support a sentence as a habitual offender even if the sentence for the prior unrelated offense was enhanced for any reason, including an enhancement because the person had been convicted of another offense. However, a prior unrelated felony conviction under IC 9-30-10-16, IC 9-30-10-17, IC 9-12-3-1 (repealed), or IC 9-12-3-2 (repealed) may not be used to support a sentence as a habitual offender.

    (f) 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 IC 35-38-1-3.

    (g) A person is a habitual offender if the jury (if the hearing is by jury) or the court (if the hearing is to the court alone) finds that the state has proved beyond a reasonable doubt that the person had accumulated two (2) prior unrelated felony convictions.

    (h) The court shall sentence a person found to be a habitual offender to an additional fixed term that is not less than the advisory sentence for the underlying offense nor more than three (3) times the advisory sentence for the underlying offense. However, the additional sentence may not exceed thirty (30) years.

  3. #3
    Join Date
    Oct 2009
    Posts
    18

    Default Re: Habitual Offender

    If the drunk driving convictions count as a felony, then, yes, there would have been two felony convictions. Drunk driving and Sexual Battery.

  4. #4
    Join Date
    Oct 2009
    Posts
    18

    Default Re: Habitual Offender

    My last post was a question of if the prior drunk driving offences would be considered a felony and if so, would that count toward the Habitual Offender enhancement.

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