§ 35-50-2-8 — Habitual offenders

Indiana § 35-50-2-8

• Jurisdiction: Indiana
• Art. 50: SENTENCES
• Ch. 2: Death Sentence and Sentences for Felonies and Habitual

Text

(a) The state may seek to have a person
sentenced as a habitual offender for a felony by alleging, on one (1) or
more pages separate from the rest of the charging instrument, that the
person has accumulated the required number of prior unrelated felony
convictions in accordance with this section.
(b) A person convicted of murder or of a Level 1 through Level 4
felony is a habitual offender if the state proves beyond a reasonable
doubt that:
(1) the person has been convicted of two (2) prior unrelated
felonies; and
(2) at least one (1) of the prior unrelated felonies is not a Level 6
felony or a Class D felony.
(c) A person convicted of a Level 5 felony is a habitual offender if
the state proves beyond a reasonable doubt that:
(1) the person has been convicted of two (2) prior unrelated
felonies;
(2) at least one (1) of the prior unrelated felonies is not a Level 6
felony or a Class D felony; and
(3) if the person is alleged to have committed a prior unrelated:
(A) Level 5 felony;
(B) Level 6 felony;
(C) Class C felony; or
(D) Class D felony;
not more than ten (10) years have elapsed between the time the
person was released from imprisonment, probation, or parole
(whichever is latest) for at least one (1) of the two (2) prior
unrelated felonies and the time the person committed the current
offense.
(d) A person convicted of a felony offense is a habitual offender if
the state proves beyond a reasonable doubt that:
(1) the person has been convicted of three (3) prior unrelated
felonies; and
(2) if the person is alleged to have committed a prior unrelated:
(A) Level 5 felony;
(B) Level 6 felony;
(C) Class C felony; or
(D) Class D felony;
not more than ten (10) years have elapsed between the time the
person was released from imprisonment, probation, or parole
(whichever is latest) for at least one (1) of the three (3) prior
unrelated felonies and the time the person committed the current
offense.
(e) The state may not seek to have a person sentenced as a habitual
offender for a felony offense under this section if the current 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. However, a prior unrelated felony conviction may
be used to support a habitual offender determination 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.
(f) A person has accumulated two (2) or three (3) prior unrelated
felony convictions for purposes of this section only if:
(1) the second prior unrelated felony conviction was committed
after commission of and sentencing for the first prior unrelated
felony conviction;
(2) the offense for which the state seeks to have the person
sentenced as a habitual offender was committed after commission
of and sentencing for the second prior unrelated felony
conviction; and
(3) for a conviction requiring proof of three (3) prior unrelated
felonies, the third prior unrelated felony conviction was
committed after commission of and sentencing for the second
prior unrelated felony conviction.
(g) A conviction does not count for purposes of this section as a
prior unrelated felony conviction if:
(1) the conviction has been set aside; or
(2) the conviction is one for which the person has been pardoned.
(h) 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. The role of the jury
is to determine whether the defendant has been convicted of the
unrelated felonies. The state or defendant may not conduct any
additional interrogation or questioning of the jury during the habitual
offender part of the trial.
(i) The court shall sentence a person found to be a habitual offender
to an additional fixed term that is between:
(1) eight (8) years and twenty (20) years, for a person convicted
of murder or a Level 1 through Level 4 felony; or
(2) three (3) years and six (6) years, for a person convicted of a
Level 5 or Level 6 felony.
An additional term imposed under this subsection is nonsuspendible.
(j) Habitual offender is a status that results in an enhanced sentence.
It is not a separate crime and does not result in a consecutive sentence.
The court shall attach the habitual offender enhancement to the felony
conviction with the highest sentence imposed and specify which felony
count is being enhanced. If the felony enhanced by the habitual
offender determination is set aside or vacated, the court shall
resentence the person and apply the habitual offender enhancement to
the felony conviction with the next highest sentence in the underlying
cause, if any.
(k) A prior unrelated felony conviction may not be collaterally
attacked during a habitual offender proceeding unless the conviction
is constitutionally invalid.
(l) The procedural safeguards that apply to other criminal charges,
including:
(1) the requirement that the charge be filed by information or
indictment; and
(2) the right to an initial hearing;
also apply to a habitual offender allegation.
As added by Acts 1976, P.L.148, SEC.8. Amended by Acts
1977, P.L.340, SEC.121; Acts 1980, P.L.210, SEC.1; P.L.335-1983,
SEC.1; P.L.328-1985, SEC.2; P.L.1-1990, SEC.353; P.L.164-1993,
SEC.13; P.L.140-1994, SEC.14; P.L.305-1995, SEC.1; P.L.166-2001,
SEC.3; P.L.291-2001, SEC.226; P.L.71-2005, SEC.11; P.L.158-2013,
SEC.661; P.L.168-2014, SEC.118; P.L.238-2015, SEC.17;
P.L.12-2017, SEC.1; P.L.37-2023, SEC.2.