Bill Text: IN HB1531 | 2011 | Regular Session | Introduced
Bill Title: Habitual offenders.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2011-01-20 - First reading: referred to Committee on Courts and Criminal Code [HB1531 Detail]
Download: Indiana-2011-HB1531-Introduced.html
Citations Affected: IC 35-50-2.
Synopsis: Habitual offenders. Removes language prohibiting the state
from seeking to have a person sentenced as a habitual offender and
habitual substance offender for certain drug related offenses. Provides
procedures for a person to be tried and sentenced as a repeat drug
offender. Specifies that a conviction for an attempt to commit or
conspiracy to commit certain sex crimes in another jurisdiction may be
included for purposes of sentencing a person as a repeat sex offender.
Effective: July 1, 2011.
January 20, 2011, read first time and referred to Committee on Courts and Criminal Code.
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A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
(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; or
(2) the offense is an offense under IC 9-30-10-16 or IC 9-30-10-17.
(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; or
(2) the conviction is one for which the person has been pardoned.
(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.
(1) "Drug" means a drug or a controlled substance (as defined in IC 35-48-1).
(2) "Substance offense" means a Class A misdemeanor or a felony in which the possession, use, abuse, delivery, transportation, or manufacture of alcohol or drugs is a material element of the crime. The term includes an offense under IC 9-30-5 and an offense under IC 9-11-2 (before its repeal).
(b) The state may seek to have a person sentenced as a habitual substance offender for any substance offense by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated two (2) prior unrelated substance offense convictions.
(c) After a person has been convicted and sentenced for a substance offense committed after sentencing for a prior unrelated substance offense conviction, the person has accumulated two (2) prior unrelated substance offense convictions. However, a conviction does not count for purposes of this subsection if:
(1) it has been set aside; or
(2) it is a conviction for which the person has been pardoned.
(d) If the person was convicted of the substance offense 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.
(e) A person is a habitual substance 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 substance offense
convictions.
(f) The court shall sentence a person found to be a habitual
substance offender to an additional fixed term of at least three (3) years
but not more than eight (8) years imprisonment, to be added to the term
of imprisonment imposed under IC 35-50-2 or IC 35-50-3. If the court
finds that
(1) three (3) years or more have elapsed since the date the person
was discharged from probation, imprisonment, or parole
(whichever is later) for the last prior unrelated substance offense
conviction and the date the person committed the substance
offense for which the person is being sentenced as a habitual
substance offender, or
(2) all of the substance offenses for which the person has been
convicted are substance offenses under IC 16-42-19 or
IC 35-48-4, the person has not been convicted of a substance
offense listed in section 2(b)(4) of this chapter, and the total
number of convictions that the person has for:
(A) dealing in or selling a legend drug under IC 16-42-19-27;
(B) dealing in cocaine or a narcotic drug (IC 35-48-4-1);
(C) dealing in a schedule I, II, or III controlled substance
(IC 35-48-4-2);
(D) dealing in a schedule IV controlled substance
(IC 35-48-4-3); and
(E) dealing in a schedule V controlled substance
(IC 35-48-4-4);
does not exceed one (1);
then the court may reduce the additional fixed term. However, the court
may not reduce the additional fixed term to less than one (1) year.
(g) If a reduction of the additional year fixed term is authorized
under subsection (f), the court may also consider the aggravating or
circumstances in IC 35-38-1-7.1(a) and the mitigating circumstances
in IC 35-38-1-7.1(b) to:
(1) decide the issue of granting a reduction; or
(2) determine the number of years, if any, to be subtracted under
subsection (f).
(1) under IC 35-48-4-1 through IC 35-48-4-5, IC 16-42-19-11, IC 16-42-19-20, or IC 16-42-19-25;
(2) for an attempt or conspiracy to commit an offense described in subdivision (1); or
(3) for an offense under the laws of another jurisdiction, including a military court, that is substantially similar to an offense described in subdivision (1) or (2).
(b) The state may seek to have a person sentenced as a repeat drug offender for a drug offense described in subsection (a)(1) or (a)(2) by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated one (1) prior unrelated felony conviction for a drug offense described in subsection (a).
(c) After a person has been convicted and sentenced for a felony described in subsection (a)(1) or (a)(2) after having been convicted and sentenced for a prior unrelated drug offense described in subsection (a), the person has accumulated one (1) prior unrelated felony drug offense conviction. However, a conviction does not count for purposes of this subsection, if:
(1) it has been set aside; or
(2) it is a conviction for which the person has been pardoned.
(d) If the person was convicted of a drug offense in a jury trial, the jury shall reconvene to hear evidence in the enhancement hearing. If the trial was to the court alone or the judgment was entered on a guilty plea, the court alone shall hear evidence in the enhancement hearing.
(e) A person is a repeat drug 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 one (1) prior unrelated felony drug offense conviction.
(f) The court may sentence a person found to be a repeat drug offender to an additional fixed term that is the advisory sentence for the underlying offense. However, the additional sentence may not exceed ten (10) years.
means a felony conviction:
(1) under IC 35-42-4-1 through IC 35-42-4-9 or under
IC 35-46-1-3;
(2) for an attempt or conspiracy to commit an offense described
in subdivision (1); or
(3) for an offense under the laws of another jurisdiction, including
a military court, that is substantially similar to an offense
described in subdivision (1) or (2).
(b) The state may seek to have a person sentenced as a repeat sexual
offender for a sex offense described in subsection (a)(1) or (a)(2) by
alleging, on a page separate from the rest of the charging instrument,
that the person has accumulated one (1) prior unrelated felony
conviction for a sex offense described in subsection (a).
(c) After a person has been convicted and sentenced for a felony
described in subsection (a)(1) or (a)(2) after having been sentenced for
a prior unrelated sex offense described in subsection (a), the person has
accumulated one (1) prior unrelated felony sex offense conviction.
However, a conviction does not count for purposes of this subsection,
if:
(1) it has been set aside; or
(2) it is a conviction for which the person has been pardoned.
(d) If the person was convicted of the sex offense in a jury trial, the
jury shall reconvene to hear evidence in the enhancement hearing. If
the trial was to the court, or the judgment was entered on a guilty plea,
the court alone shall hear evidence in the enhancement hearing.
(e) A person is a repeat sexual 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 one (1) prior unrelated felony sex offense conviction.
(f) The court may sentence a person found to be a repeat sexual
offender to an additional fixed term that is the advisory sentence for the
underlying offense. However, the additional sentence may not exceed
ten (10) years.
