702 N.E.2d 1105 | Ind. Ct. App. | 1998
OPINION
Case Summary
AppellanWDefendant, Robert Boykin (“Boykin”), appeals the post-conviction court’s refusal to vacate his guilty plea. We affirm in part and reverse in part.
Issues
Boykin raises several issues for our review.
I. Whether the post conviction court erred by not vacating Boykin’s entire plea agreement upon a finding that Boykin’s habitual offender conviction was subsequently vacated.
Facts and Procedural History
The facts most favorable to the judgment show that in 1990 Boykin pleaded guilty to: auto theft,
In 1994, one of the convictions underlying Boykin’s habitual offender conviction was set aside. Accordingly, Boykin filed this successive petition for post-conviction relief. The post-conviction court vacated the habitual offender conviction but refused to vacate Boy-kin’s guilty plea. This appeal ensued.
Discussion and Decision
Boykin argues that the post conviction court erred by not vacating his entire plea agreement.
In his petition for post conviction relief, Boykin had to prove by a prepon
Ind.Code § 35-35-3-3(e)
However, we also conclude that the remainder of Boykin’s plea agreements, the balance of Plea I and all of Plea II, remains effective.
Affirmed in part and reversed in part and remanded with instructions to vacate Boy-kin’s conviction and sentence for Auto Theft.
. Mr. Boykin has elected to proceed with this appeal pro se. A defendant who proceeds pro se "accepts the burdens and hazards incident to his position.” Houston v. State, 553 N.E.2d 117, 118 (Ind.1990). The issue listed above is the only argument wb can discern, and therefore, it is the only argument we will address. We deem any and aU'Other issues waived.
. Ind.Code § 35-43-4-2.5.
. Ind.Code § 35-44-3-3.
. Ind.Code § 35-50-2-8.
. Ind.Code § 35-42-5-1.
. Ind.Code § 35-50-2-7.1, repealed by P.L. 164-1993, SEC.14.
. Boykin argues that by vacating the habitual offender sentence in Plea I, the post conviction court altered the terms of Plea II as well as Plea I. Accordingly, Boykin argues that Pleas I and II should be vacated. We find this argument without merit. As Plea I is the only plea agreement with an altered sentence, we will only consider whether some or all of Plea I should be vacated.
. Formerly Ind.Code § 35-35-3-3(d).
. The State cites Snyder v. State, 668 N.E.2d 1214 (Ind.1996), in support of the contention that once an habitual offender conviction is vacated, the sentence for the underlying offenses remain intact. In Snyder, however, the defendant only pleaded guilty to the underlying offenses. The plea agreement left the habitual offender charge pending. The defendant was later convicted of being an habitual offender following a bench trial. Thus, the sentence under the plea agreement did not include the habitual offender enhancement, and therefore, we assume that the sentence pursuant to the plea agreement was not altered when the habitual offender conviction was vacated.
. Prohibitions against double jeopardy do not bar the State from refiling the Auto Theft charge, Roe, 598 N.E.2d at 588; for, a void judgment does not put a defendant in jeopardy. Id. See also Niece v. State, 456 N.E.2d 1081, 1084 (Ind.Ct.App.1983).
. After the vacation of the Auto Theft conviction, the final sentence under Plea I will be three years, to run concurrently with a fifteen year sentence under Plea II. Thus, Boykin's original sentence, a total of fifteen years, will remain unchanged following this appeal.
. Boykin also argues that his plea of guilty in Plea I and Plea II was involuntary and unintelligent because he was not advised that by pleading guilty to the charges outlined therein, he was waiving his right to a jury determination on his habitual offender status. We find no merit in Boykin’s argument. The record indicates that Boykin was adequately informed that he was giving up his right to a juiy trial by pleading guilty to the charges in both Plea I and Plea II.