FOR PUBLICATION

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

JEFFREY D. STONEBRAKER                          GREGORY F. ZOELLER
Clark County Chief Public Defender              Attorney General of Indiana
Jeffersonville, Indiana 47130
                                                KATHERINE MODESITT COOPER
                                                Deputy Attorney General
                                                Indianapolis, Indiana



                             IN THE
                   COURT OF APPEALS OF INDIANA

                                                                       December 18 2013, 6:51 am
GEORGE A. NUNLEY,                               )
                                                )
      Appellant-Defendant,                      )
                                                )
             vs.                                )    No. 10A04-1212-CR-630
                                                )
STATE OF INDIANA,                               )
                                                )
      Appellee-Plaintiff.                       )


                     APPEAL FROM THE CLARK CIRCUIT COURT
                         The Honorable Daniel E. Moore, Judge
                            Cause No. 10C01-1005-FC-082




                                     December 18, 2013



                   OPINION ON REHEARING- FOR PUBLICATION



ROBB, Chief Judge
       The State has petitioned this court for rehearing of our decision dated October 2, 2013.

In our opinion we held, in relevant part, that the trial court erred in allowing the State to

amend the habitual offender allegation after the jury was empaneled. Nunley v. State, 995

N.E.2d 718, 726 (Ind. Ct. App. 2013). We concluded that the amendment was made after the

commencement of trial and that it prejudiced Nunley’s substantial rights and therefore was

not allowed under any subsection of Indiana Code section 35-34-1-5, which deals with

amendments to an information. Accordingly, we reversed the habitual offender enhancement

to Nunley’s sentence. Id. at 725. We write now to clarify our decision, and we affirm our

opinion in all respects.

       The State argues that the proper remedy for a late-filed amendment would have been

for us to remand to the trial court for proceedings on an habitual offender sentence

enhancement, rather than the reversal that we ordered. For this contention, the State cites to

Jaramillo v. State, 823 N.E.2d 1187 (Ind. 2005), cert. denied, 546 U.S. 1030 (2005). In

Jaramillo, our supreme court held that “the Double Jeopardy Clause does not prevent the

State from re-prosecuting a habitual offender enhancement after conviction therefore has

been reversed on appeal for insufficient evidence.” Id. at 1191. The holding in Jaramillo

was itself based on a similar holding by the United States Supreme Court. Monge v.

California, 524 U.S. 721, 734 (1998) (holding that the double jeopardy clause does not apply

to noncapital sentencing proceedings; the case involved a “three-strikes” sentencing

enhancement where the State had failed to provide sufficient evidence to prove one of the

predicate offenses).


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       The difference between these cases and Nunley’s is that those enhancements were

overturned for insufficient evidence, whereas here, the State failed to timely and properly

allege the habitual offender status. While Monge’s holding was somewhat broad regarding

noncapital sentencing proceedings, it did not address the issue on point here, nor did

Jaramillo.

       We find no cases in which we or our supreme court has determined that an habitual

offender allegation was wrongly amended under Indiana Code section 35-34-1-5 and then

remanded for further proceedings on the allegation rather than reversing. The closest match

is White v. State, 963 N.E.2d 511, 518 (Ind. 2012), in which our supreme court addressed a

belated habitual offender allegation amendment but concluded that because the defendant did

not object to the amendment or request a continuance, the issue was waived on appeal; the

court then addressed the sufficiency of the evidence supporting the allegation.

       Our concern with extending Jaramillo to our current case is that it would conflict with

the language and purpose of Indiana Code section 35-34-1-5. The issue in this case regards

the timing of an amendment to an allegation rather than the evidence supporting that

allegation. Thus, this case is distinct from Jaramillo. Therefore, even if remanding for

further proceedings on the habitual offender allegation would not violate federal double

jeopardy under Monge, we believe it would be contrary to the relevant state statute. Because

the State’s original habitual offender allegation failed to list appropriate predicate offenses,

there would be nothing to address on remand without an amendment to the allegation. Were

we to remand now and allow the State to amend its original allegation, Indiana Code section


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35-4-1-5 and its timing requirements would be rendered pointless. We therefore affirm our

original decision to reverse, and affirm that opinion in all respects.

KIRSCH, J., concurs.

RILEY, J., would deny the Petition for Rehearing.




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