




Attorney for Appellant



Ross G. Thomas

Dillon Law Office

Indianapolis, Indiana

Attorneys for Appellee



Jeffrey A. Modisett

Attorney General of Indiana



James A. Garrard

Deputy Attorney General

Indianapolis, Indiana





IN THE

INDIANA SUPREME COURT





GARY ELVERS
,

Appellant (Defendant below),



v.



STATE OF INDIANA
,

Appellee (Plaintiff below).



)

)	Supreme Court No.

)	09S02-9805-PC-00292

)

)	Court of Appeals No.

)	09A02-9706-PC-374

)

)

)





APPEAL FROM THE CASS CIRCUIT COURT

The Honorable Daniel Vanderpool, Special Judge

Cause No. 09C01-9207-CF-119







ON PETITION TO TRANSFER







July 8, 1998

SULLIVAN,  Justice.



In accordance with our recent decision in 
State v. Mohler
, 694 N.E.2d 1129 (Ind. 1998), we conclude that the new rule of law announced in 
Bryant v. State
, 660 N.E.2d 290 (Ind. 1995), 
cert. denied
, 117 S.Ct. 293 (1996), is not retroactive under 
Daniels v. State
, 561 N.E.2d 487 (Ind. 1990), and so does not entitle Gary Elvers to post-conviction relief.



On July 24, 1992, the Indiana Department of Revenue assessed Gary Elvers (“Elvers”) a Controlled Substance Excise Tax (“CSET”) for possessing marijuana.
(footnote: 1)  The State charged Elvers with possession of marijuana, a class A misdemeanor,
(footnote: 2) and failure to pay the CSET
(footnote: 3) on July 28, 1992.  Elvers pled guilty to the charge of possession on May 24, 1993.



On July 3, 1996, Elvers filed a petition for post-conviction relief based on this Court’s decision in 
Bryant
, 660 N.E.2d 290 (holding that because CSET is punishment, the Double Jeopardy Clause bars drug prosecution after CSET has been assessed), which the post-conviction court denied.  Elvers appealed.  The Court of Appeals reversed the post-conviction court’s denial of relief, holding that the rule announced in 
Bryant
 applied retroactively to Elvers.  
Elvers v. State
, 693 N.E.2d 99 (Ind. Ct. App. 1998).



In its decision, the Court of Appeals commented upon the lack of “any meaningful distinction” between 
Bryant
 and 
Whitt v. State
, 659 N.E.2d 512 (Ind. 1995), in which this Court found no double jeopardy violation.  We explained the distinction in our 
Whitt
 opinion:

It is readily apparent under the 
Blockburger
 “same elements” test, used in this same context today in 
Collins v. State
[, 659 N.E.2d 509 (Ind. 1995)], that Whitt’s double jeopardy rights were not offended by the two prosecutions.  As we confirmed in 
Collins
, where each offense contains an element which the other does not, the defendant cannot be said to have been prosecuted for the “same offense” in violation of the Double Jeopardy Clause.  
Collins
, 659 N.E.2d at 510.



Section 35-48-4-6 required the State to prove Whitt possessed cocaine 
within one thousand feet of school property
.  Section 6-7-3-11(b) contains no such element.  In turn, Section 6-7-3-11(b) required that the State prove Whitt possessed cocaine 
without having paid the CSET
.  Obviously, Section 35-48-4-6 has no such requirement.  Because each offense contained an element which the other did not, Whitt’s double jeopardy rights were not violated.



Whitt
, 659 N.E.2d at 513-14 (emphasis in original and footnotes omitted).



Having granted transfer, we vacate the opinion of the Court of Appeals pursuant to Ind.Appellate Rule 11(B)(3) and affirm the post-conviction court’s denial of relief for the reasons set forth in 
Mohler
, 694 N.E.2d 1129.



SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.

FOOTNOTES
1:Ind. Code § 6-7-3-5 (Supp. 1992).


2:Ind. Code § 35-48-4-11 (1988).


3:Ind. Code § 6-7-3-11 (Supp. 1992).


