




Attorney for Appellant



David A. Smith

McIntyre & Smith

Bedford, Indiana



Attorneys for Appellee



Jeffrey A. Modisett

Attorney General of Indiana



Christopher L. LaFuse

Deputy Attorney General

Indianapolis, Indiana





IN THE

INDIANA SUPREME COURT



JAMES E. DUNN,

Appellant (Defendant below),



v.



STATE OF INDIANA,

Appellee (Plaintiff below).



)

)	Supreme Court No.

)	47S04-9801-PC-00007

)

)	Court of Appeals No.

)	47A04-9701-PC-20

)

)





APPEAL FROM THE LAWRENCE SUPERIOR COURT

The Honorable William G. Sleva, Judge

Cause No. 47E01-9208-CF-848







ON PETITION TO TRANSFER







May 6, 1998

SULLIVAN,  Justice.



In accordance with our decision today in 
State v. Mohler
, No. 87S01-9709-PC-497 (Ind. May 6, 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 James E. Dunn to post-conviction relief.



In August, 1992, the State charged James E. Dunn (“Dunn”) with possession of more than thirty grams of marijuana, a class D felony.
(footnote: 1)  In September, 1992, the Indiana Department of Revenue issued Dunn a warrant for assessment and collection of a Controlled Substance Excise Tax (“CSET”).
(footnote: 2)  Dunn pled guilty in October 1994 to the charge of possession.



In January, 1996, Dunn 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.  Dunn appealed.  In a memorandum decision, the Court of Appeals reversed the post-conviction court’s denial of relief, holding that the rule announced in 
Bryant
 applied retroactively to Dunn.  
Dunn v. State
, No. 47A04-9701-PC-20 (Ind. Ct. App. Oct. 21, 1997).



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 
State v. Mohler
, No. 87S01-9709-PC-497 (Ind. May 6, 1998), also decided today.



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

FOOTNOTES
1: Ind. Code § 35-48-4-11(1) (1988).


2: Ind. Code §§ 6-7-3-1 to -17 (Supp. 1992).


