State v. Downey

746 N.E.2d 374, 2001 WL 333838
CourtIndiana Court of Appeals
DecidedJune 28, 2001
Docket79A05-0010-CR-415
StatusPublished
Cited by3 cases

This text of 746 N.E.2d 374 (State v. Downey) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Downey, 746 N.E.2d 374, 2001 WL 333838 (Ind. Ct. App. 2001).

Opinions

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Plaintiff, State of Indiana (State), appeals the trial court's interlocutory order granting Appellee-Defendant Brian W. Downey's (Downey) motion to dismiss the State's habitual substance offender information.

We affirm.

ISSUE

The State raises the following issue on interlocutory appeal: whether the trial court properly dismissed the State's habitual substance offender count against Dow-ney.

FACTS AND PROCEDURAL HISTORY

On December 6, 1999, the State charged Downey with Count I, possession of marijuana, as a Class A misdemeanor, Ind. Code § 35-48-4-11; Count II, possession of marijuana while having a prior marijuana conviction, as a Class D felony, Ind. Code § 35-48-4-11; Count III, reckless possession of paraphernalia, a Class A misdemeanor, Ind.Code § 35-48-4-8.3; and Count IV, information of habitual substance offender, Ind.Code § 85-50-2-10. Specifically, the information for Count II, possession of marijuana with a prior marijuana conviction, a Class D felony, reads in pertinent part as follows:

On or about the 18th day of November, 1999, in Tippecanoe County, State of Indiana, Brian W. Downey did knowingly or intentionally possess marijuana, pure or adulterated, while having a prior conviction involving marijuana, to wit: Possession of Marijuana, in the White Superior Court (91D01-9308-CM-410), White County, State of Indiana, on or about the 19th day of October, 1998. ...

(R. 9). Additionally, the information for Count IV, habitual substance offender reads in pertinent part as follows:

Brian W. Downey, having committed a substance offense as alleged in Counts I and II, is an Habitual Substance Offender for the reason that said Brian W. Downey has accumulated at least two [376]*376prior unrelated substance offense con-viections, to wit:
On or about the 20th day of April, 1990, the said Brian W. Downey was convicted in the Newton Superior Court, Newton County, State of Indiana, of the offense of operating While Intoxicated, a substance offense, committed in Newton County, State of Indiana, on or about the 13th day of April, 1990, for which conviction the said Brian W. Downey was sentenced on or about the 20th day of April, 1991;
Further, on or about the 19th day of October, 1998, the said Brian W. Dow-ney was convicted in the White Superior Court, White County, State of Indiana, of the offense of Possession of Marijuana, a substance offense. Committed in White County, State of Indiana, on or about the 14th day of August, 1998, for which conviction the said Brian W. Dow-ney was sentenced on or about the 19th day of October, 19983;
Further, on or about the 25th day of September, 1995, the said Brian W. Downey was convicted in the Tippecanoe County Court, Tippecanoe County, State of Indiana, of the offense of Operating While Intoxicated While Having a Prior Conviction for Operating While Intoxicated, a substance offense, committed in Tippecanoe County, State of Indiana, on or about the 8th day of July, 1994, for which conviction the said Brian W. Dow-ney was sentenced on or about the 25th day of September, 1995. ...

(R. 12).

On July 14, 2000, Downey filed a Motion to Dismiss Information of Habitual Substance Offender, claiming that the underlying information for possession of marijuana, as a Class A misdemeanor, once elevated to a Class D felony due to a prior marijuana conviction, cannot again be enhanced under the general Habitual Substance Offender statute.

The trial court conducted a hearing on Downey' motion to dismiss on August 1, 2000. At the hearing, the State orally moved to amend the Habitual Substance Offender information to strike the White County conviction for possession of marijuana from the allegation, but the trial court denied that motion. Following the hearing, the trial court granted Downey's motion and dismissed the Habitual Substance Offender count.

On August 2, 2000, the State filed a praecipe for the transcript of the hearing on Downey's motion to dismiss. On August 16, 2000, the State filed a Motion to Correct Errors and a Motion to Certify Questions for Interlocutory Appeal. On August 24, 2000, the trial court granted the State's Motion to Certify Questions for Interlocutory Appeal.

On October 23, 2000, this court granted the State's Petition for Interlocutory Appeal, and accepted jurisdiction of this appeal.

DISCUSSION AND DECISION

The State argues that the trial court improperly dismissed the habitual substance offender information prior to trial because the legislature intended to permit double enhancement for marijuana possession: onee to a Class D felony for a prior marijuana conviction, and an additional enhancement under the habitual substance offender statute. On the other hand, Dow-ney argues that the trial court properly dismissed the habitual substance offender count because the State was prohibited from enhancing Downey's marijuana possession charge a second time under the habitual substance offender statute. Specifically, Downey contends that the State could only enhance his charge onee to a Class D felony, under the more specific [377]*377marijuana possession statute, rather than once again, under the more general habitual substance offender statute. We agree.

A person commits the crime of possession of marijuana when:

A person who: (1) knowingly or intentionally possesses (pure or adulterated) marijuana, hash oil, or hashish; (2) knowingly or intentionally grows or cultivates marijuana; or (8) knowing that marijuana is growing on his premises, fails to destroy the marijuana plants; commits possession of marijuana, hash oil, or hashish, a Class A misdemeanor. However, the offense is a Class D felony (i) if the amount involved is more than thirty (80) grams of marijuana or two (2) grams of hash oil or hashish, or (i) if the person has a prior conviction of an offense involving marijuana, hash oil, or hashish.

Ind.Code § 35-48-4-11. Additionally, the State may seek an habitual substance offender determination for any substance offense "by alleging ... that the person has accumulated two (2) prior unrelated substance offense convictions." Ind.Code § 35-50-2-10(b). A person is an habitual substance offender if the State proves beyond a reasonable doubt that the person has accumulated two (2) prior unrelated substance offense convictions. Ind.Code § 35-50-2-10(e).

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Related

State v. Downey
770 N.E.2d 794 (Indiana Supreme Court, 2002)
Schnepp v. State
768 N.E.2d 1002 (Indiana Court of Appeals, 2002)
State v. Downey
746 N.E.2d 374 (Indiana Court of Appeals, 2001)

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Bluebook (online)
746 N.E.2d 374, 2001 WL 333838, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-downey-indctapp-2001.