Fassinger v. State
666 N.E.2d 58
Ind.
1996
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*1 58

SHEPARD, Chief Justice. FASSINGER, Appellant James A. Having drug against tax assessed Indiana’s (Defendant Below), Fassinger appellant James and received assessment, payment the the some under v. try pos- him now seeks to for criminal State Indiana, Appellee of STATE marijuana. jeopardy pre- session of Double Below). (Plaintiff doing vents it from so. County charged prosecutor The of Porter No. 64S04-9605-CR-372. appellant Fassinger three counts James with Supreme of Indiana. Court delivery marijuana, felony, D of of a class (West Supp. § Ann. 35-48-4 — 10 Ind.Code 22, May 1996. 1995), 15, on December 1993. The Indiana subsequently Department of State Revenue “jeopardy against a Fas- issued assessment” $17,000 tax, singer penalties, in for about and interest, in our accordance with Controlled (“CSET”), Excise Tax Ind.Code Substances (West Supp.1995), pos Ann. ch. 6-7-3 for (about sessing marijuana that seven ounces all).* Fassinger began payments in to make during spring the tax the of 1994. The on payments, in appeal record on shows $450 course, though, of we do not know how much Fassinger the has since satis of assessment fied. 1995, January Fassinger

In moved to dis charges, which miss the criminal were still pending. prose criminal He contended that by Fifth cution was barred the Amendment prohibition against jeopardy. double The tri motion, al court denied his and the Court of State, Fassinger Appeals affirmed. v. 656 (Ind.Ct.App.1995). N.E.2d 1163 The motion granted. have been should Ap- the trial court and the Court of Both Fassinger’s peals ruled on motion before we concerning of issued a series decisions drug tax in late 1995. In one of Indiana’s State, cases, Bryant those v. 660 N.E.2d 290 (Ind.1995), jeop- that we held federal double ardy in when the attaches Indiana’s CSET Department jeopardy issues its assessment. judgment upon is in effect a This assessment government levy can until such which the may assessment be overturned or time as the Conover, Chesterton, Garrett V. John M. stayed. collection Id. at 299. Vouga, Portage, Appellant. for jeopardy through Having suffered a the Carter, General, system, Fassinger placed in Attorney tax cannot be Pamela David Arthur, General, Attorney jeopardy again through the criminal courts. Deputy A. India- Revenue, Bailey Dep’t State napolis, Appellee. for v. Indiana of * agent $800. Fassinger marijuana for a total of had sold most of the to an undercover

59 (Ind.1995). 322, n. 3 While N.E.2d 324 660 Fassinger not was argued has that

the State Department jeopardy by the be- in

placed challenge the assessment he did not

cause him, a is no less

against the assessment effectively Fassinger “pled

jeopardy because defendant who

guilty” to it. A criminal to cannot be tried a sec-

pleads guilty theft just because the time for same theft

ond the pursuant to a conviction was entered

first guilty. of

plea opinion vacate the grant transfer and

We Appeals. judgment of The of

of the Court court and the matter

the trial is reversed grant to the mo- with instructions

remanded

tion to dismiss. SELBY, JJ., concur.

DICKSON and

DeBRULER, J., separate without dissents

opinion.

SULLIVAN, J., dissenting, deny would

transfer, the of finding opinion the of Court 1163, case,

Appeals in this 656 N.E.2d consis State, position Bryant in v. his 660

tent with 290, (Sullivan, J., pe dissenting), 303

N.E.2d (U.S. filed, cert. 64 U.S.L.W. 38

tition for (No. 95-1567). 26, 1996)

Mar.

Randy CLIVER, Defendant-Appellant, J.

v. Indiana, Plaintiff-Appellee. of

STATE

No. 28S00-9305-CR-556.

Supreme of Indiana. Court 23,

May 1996.