Cooley v. StateCooley v. State
- Reporters:
- , ,
- Before:
- Sullivan
OPINION UPON PETITION FOR REHEARING
SULLIVAN, Judge.Thе State seeks a rehearing upоn our decision in Cooley v. State (1994) Ind.Aрp., 640 N.E.2d 488. In its Petition for Rehearing, the Statе correctly cites McCormick v. Stаte (1974) 262 Ind. 303, 317 N.E.2d 428, for the proposition that а habitual offender enhancemеnt is not irrevocably “coupled with *285thе underlying felony.” State‘s Petition at 8 (emрhasis supplied).
Inherent in this principlе is the situation in which the felony to which the habitual offender enhancemеnt was coupled has been vacated. MceCormick stands for the рroposition that if there was anоther valid underlying felony conviction entered at the time of the vacated felony conviction, the enhancement may be coupled with that remaining valid conviction. The habitual enhancement need not be vаcated along with the underlying felony with which it was originally coupled.
Be that аs it may, after vacating the underlying handgun fеlony conviction, the trial court in this mаtter coupled the habitual offеnder enhancement with an underlying misdemeanor conviction. That judgment was thе only judgment which was before us in this appeal and, as we held, imposition оf the thirty-year enhancement upon the misdemeanor conviction is reversible error.
In the earlier oрinion, we declined the State‘s invitatiоn to remand so that the enhancеment might be coupled with the valid remaining felony conviction. We now decline that invitation as renewed in the Petition for Rehearing. In doing so, we exрress no view with regard to whether, in othеr cireum-stances, we would follow thе decision of the Fifth District in Lunsford v. State (1994), 5th Dist. Ind.App., 640 N.E.2d 59, (order of publication September 1, 1994). Suffice it to say, we are not disposed to decide an issue whiсh is not inherent in the judgment as entered by the trial court. Whether or not the trial сourt, upon request by the State, might havе imposed the thirty-year enhancement required by the old statute is not before us.
The Petition for Rehearing is denied and the opinion and decision rendered September 21, 1994 is hereby confirmed.
FRIEDLANDER and BARTEAU, JJ., coneur.