*1 thеy in fact hold as were described the habitual under enhanced The sentence However, original opinion. opinion on statutory one. special is a statute offender rehearing readjust in chooses to of increas- dramatic effect It can have my point this matter and from of view years single sentence two ing a province legislature fact invades the gross such a A a lifetime. basis half by adds a restriction to the statute prior existence of the two impact is the sentences, change fiat. If such a is to be judicial felony convictions unrelated made, legislature it should be made оffender dangerous nature this Court. gross A bespeak. basis they which sentences impact consecutive which original opinion affirming the trial contrast, is, moral have should stand. criminal act separate and distinct each punish experienced separately deserves J., PIVARNIK, concurs. offender thе habitual ment. Furthermore binding a more carries status determination that does the de- the sentence
effect multiple acts.
termination process of the Therefore, purpose and special
felony offender statute habitual dimensions.
and distinct study of sum, apparent, from a statutes, such statutes are present EDDY, Frances courts question of whether silent on the (Plaintiff Below), of- authority require habitual have consecutively, to run fender sentences McGINNIS, Appellee Brian meting out engaged process Below). (Defendant ex- In the sentences. absence several for such press statutory authorization No. 20S03-8703-CV-302. sentences, offender tacking of habitual Suрreme of Indiana. is none. there May31,1988. granted to the extent of Rehearing is enhanced two sentences requiring that the upon the status
by thirty years, based offender, run con- be ordered to
habitual deter- judge the trial
currently and for carries the second
mine conviction It is so ordered. enhancement.
habitual DICKSON, J.,
SHEPARD, C.J., and
concur.
GIVAN, J., separate dissents with
concurs. REHEARING PETITION FOR
ON Justice, dissenting.
GIVAN, majority respectfully petition for granting
in this case rehearing cites
rehearing. petition original as cited same cases acknowledges they do
opinion and *2 percent. police content of .25
cohol
driving
intoxicated,
ticketed him for
while
prosecutor
charged
later
him with
intoxicated,.
driving
while
outcome
charges
is not a
matter
record
appeal.
this
.
brought
negligence
Eddy
actio
seeking compensatory
McGinnis
punitive damages.
McGinnis moved
partial summary judgment
for
on the issue
punitive damages, claiming
that Ind.
Code 34-4-80-2 was unconstitutional as
§
prohibition against
a violation of the
I,
Ind. Const. art.
14. The
§
granted
trial court
the motion
certified
interlocutory appeal.
the order for an
We
accepted jurisdiction
Appellate Rule
under
4(B)(6)(b).
reviewing
constitutionality
statute,
every
of this
we are mindful
Assembly
enactment of our General
stands
presump
this
cloaked with a
beforе
constitutionality.
tion of
American No
Trust
v. Indiana De
tional Bank &
Co.
(1982), Ind., 439
partment
Highways
(1839),
1129;
Cooper
N.E.2d
possible inter
Blekf. 258. If there are two
statute,
inter
pretations of the
one
pretation the statute would be invalid but
valid,
adopt
by the other
the Court should
Wicks,
Reiff,
Craig
Elk-
Charles C.
A.
uphold
interpretation
will
hart,
appellant.
for
v. Board
Flood Control
statute. Book
Groves,
Bend,
appel-
Commissioners
James F.
South
for
lee,
87. A
of case law
N.E.2d
review
Con
Fifth Amendment of the United States
I,
14 of the Indiana
and art.
stitution
SHEPARD,
§
Chief Justice.
suggests why
legislature's
interlocutory appeal challenges
This
upheld.
enactment should be
constitutionality
Code
provides
34-4-830-2.
that a
That statute
§
Jeopardy
Double
Clause
I The Federal
possibility
not
defendant
assert
to a
eriminal
as a defense
claim
Fifth Amend
Comparison with the
punitive damages. The
is
issue wheth-
controlling.
helpful,
ment is
but
While
er Ind.Code 34-4-30-2 violates the dou-
not decided
Supreme
Court has
U.S.
ble
сlause of the Indiana Constitu-
suggests
existing
question,
case law
tion. We hold it does not.
violate
punishment for acts which
that civil
Fifth
not violate the
Eddy
injured
statutes does
Frances
criminal
her car
Amendment,
was struck
a car driven
"nor shall
which states:
subject for the same offense
Brian
al-
McGinnis. McGinnis had a blood
aсt or omission
provides,
pertinent
criminal
1. Ind.Code 34-4-30-2
part:
puni-
1984 Ind.Acts
rise to the civil action."
"It is not a defense to an
2.§
tive
is
P.L.
proceeding,
purpose
in the
cance
life or
identity
consequences, and the
"In the
amend. V.
U.S. Const.
limb...."
plaintiff.
sense,
describes
awith
traditionally associated
risk
Breed,
purpоse
juvenile
Jones, 421
Breed v.
prosecution."
determine whether the
proceeding was to
1779, 1785, 44 L.Ed.
519, 528, 95 S.Ct.
U.S.
law,
had violated
defendant
*3
sanction
(1975).
346,
"Unless th[e]
2d
354
stig-
consequénces included the
possible
the
that the
so
punishment,
intended as
was
deprivation
a criminal
and
ma of
violation
criminal, the dou
essentially
proceeding is
Supreme Court found
liberty. The U.S.
of
for the de
provided
clause
jeopardy
ble
essentially criminal
proceeding to be
the
ap
is not
prosecutions
in criminal
fendant
protection.
jeopardy
to double
and entitled
Mitchell, 303 U.S.
Helvering v.
plicable."
contrast,
proceed-
purpose of the
the
917,
633,
630,
82 L.Ed.
391, 898-99, 58 S.Ct.
gross neg-
to determine
ing in
was
Hansen
(1938).
921
which,
itself,
of
ligence, a determination
a see-
addressed
Helvering
The Court
penalties.
The
no criminal
carried
provided for
revenue act which
tion
damages
through punitive
property
loss of
deficiency
to
due
one half
penalty
оf
consequences of a
carry the serious
did not
by the
not barred
penalty
This
was
fraud.
Moreover,
the action
sanction.
criminal
rea-
The Court
clause.
jeopardy
double
individual,
not
by private
brought
was
soned:
therefore de-
Fifth Circuit
The
the state.
impose
a criminal
both
Congress
damages awarded
"that
termined
respect
to the
plain-
by an individual
sanction
lawsuit
a civil
private
in a
omission;
double
'essentially
criminal'
the
an
part
not
of
act
tiff are
same
punish-
merely
prohibits
clause
jeopardy
and, thus,
fall within
do not
proceeding
twice,
a second time
attempting
ing
against double
prohibition
purview of the
offense.
the same
criminally, for
punish
Hansen,
at 1042.
784 F.2d
jeopardy."
633,
899,
Scobey with Partial puni- "Motion recovery granted McGinnis's may provide ture stated, in a writ- Judgment" is and injury Summary an where damages in cases tive not recover Eddy could act, although opinion, the same that ten by an caused correctly Judge Yoder damages. to a subject punitive may illegal act 583, (1854), 5 at Beedle Hutson prosecution." in Taber v. out that points thereafter, the 322, many in cases 121. N.E. consistently of Indiana Supreme Court Indiana of the a violation Conclusion it is IV. held that of the the Constitution Constitution - say can about that one The most person to double subject a States United have is that we on this precedent Indiana, art. jeopardy. See puni- imposition of the unlimited prohibited Constitution, amend- 14; United States such grounds that § damages on the tive ment V. Ab- constitution. spirit of our violates legis- prohibition, a constitutional part on a sent rely in attempts to Appellant the state's substan- reform is free to lature Ind.L.J. at 20 appearing article law review so, and done field. It has in this law tive takes issue author in 123, (1945) which partial sum- not entitled McGinnis opinion Taber Judge Davidson's with punitive the issue judgment mary follow opinion does not claims on damages. under- hard to authority and is weight However, Judge Davidson's I find trial сourt is re- judgment stand. with in tune completely lucid opinion is remanded with this cause versed grievance is his to redress expense of a suit person, say from or that a "Who shall 2. five compensated more than illegally de- is sum an inconsiderable whom or tak- charged, armed demanded charged officer who is so the amount times manded process his at 218-19. compulsory to enforce N.E.2d Scobey, with en?" demand, being obligated incur such notwithstanding tion but is total accord with concepts contrary. Taber, supra. to the authorities some I would hold that Ind.Code 34-4-80-2 Judge Davidson is correct Constitution, violation damages to be un- punitive declare did 14 and affirm the trial court. fact, expressly held he In constitutional. however, out, pointed He contrary. to the may the offender where a situation concurs. he cannot sanction punished by criminal damage in a civil subject to also prohibi- the constitutional
action because being placed
tion ex rel. the case
Appellant cites (1893), 135 Ind.
Beedle Schoonover it holds that and claims
35 N.E. damages in civil ac allowing FORD, Jr., Appellant James Robert Judge Yo- As tion is not unconstitutional. (Defendant below), opinion in this pointed in his der out the statute holds the Beedle case limited specific or provides for involved Indiana, Appellee STATE recovery, it be allowed. sum below). (Plaintiff Scobey v. ex rel. regard, Bеedle cites State No. 20S00-8704-CR-471. (1885), 103 Ind. Stevens, et al. Mitchell, in a Scobey, Chief 214. Supreme Court of Indiana. Indiana law opinion, reviews well-written June reviews cases subject and also on this to the con which hold jurisdictions other in fact a
trary, and concludes for either of the constitution
violation *6 legislature to allow or the
courts arising same acts for criminally pros may be the offender - ecuted. wrоngdoer was Scobey
In the bribe, offering a which was
accused in the statute. misdemeanor as a defined either the provided that
The statute further person offering the bribe could in addition to
taking the bribe official bond to the
fine on his "be liable fees injured for five times
party demanded, taken, and the same
charged, recovered, costs, in the cireuit with 56, 2 at 215. Chief court." correctly pointed out that Mitchell
Justice provision is not fact
such a fixing of damages but is the public offi- on the bond
compensation by a tortious act. injuries sustained
cer for N.E. at opinion is more Mitchell's
Chief explana- more in detail its
lengthy and