George HUNTER, Appellant, v. STATE of Indiana, Appellee.
No. 20A03-8702-CR-49.
Court of Appeals of Indiana, Third District.
Sept. 30, 1987.
Rehearing Denied Oct. 28, 1987.
Transfer Denied Feb. 23, 1988.
Here, the State presented no evidence on the subject, let alone that offered and held insufficient in Lacy and Canter. The State‘s sole “evidence” is its unsupported speculation the evidencе had probably been destroyed. In a concurring opinion in Woodford v. State (1985), Ind., 484 N.E.2d 563, 566, Justice Shepard addressed a similar situation, saying
While the trial judge might well have found that the appellant‘s delay in filing his petition was unreasonable under circumstances permitting diligence, the evidence offered by the prosecutor on the question of prejudice to the Statе was insufficient to establish an equitable bar. Other than the passage of time, the only specific prejudice cited in the State‘s brief or, apрarently, offered at trial has been the disposal of those items of physical evidence kept in the Indianapolis Police Departmеnt property room. How the loss of these items damages the State‘s case is unexplained. Whether the other items of tangible evidence which were kept elsewhere are still available is also unexplored. We are not provided with any testimony about the availability of the witnessеs or the investigating officer.
The mere assertion by the State it is unable to reprosecute due to lack of evidence without more is insufficient. Absent evidence of a reasonably diligent search and the unavailability of evidence and witnesses to make a case, the State‘s laches defense fails.
Accordingly, we conclude the State has failed to meet its burden of proof on its defense of laches.
Reversed and remаnded with instructions to grant the petition for post-conviction relief.
RATLIFF, C.J., and MILLER, J., concur.
Richard L. Mehl, Goshen, for appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for aрpellee.
HOFFMAN, Judge.
Defendant-appellant George Hunter appeals a jury‘s verdict convicting him of driving with a suspended license, a Class D felony. As а result of his conviction the trial court sentenced Hunter to a two-year term of imprisonment, and his driver‘s license was suspended for life.
The evidence relevant to this appeal discloses that Hunter attended an administrative hearing by the Bureau of Motor Vehicles on April 2, 1985. The hearing officer placed Hunter on a one-year period of probation ending April 2, 1986. Twenty days later after examining its records, the Bureau suspended Hunter‘s license although no new violations occurred. On October 10, 1985 Hunter was stopped for disregarding a stop sign. A computer check revealed that Hunter‘s license was suspended and that he was an habitual traffic offender.
At Hunter‘s trial, the officer could testify only as to the fact that he stopped Hunter for the traffic violation and the results of the computer check of Hunter‘s driving record. As its only other evidence, the State offered and the court admitted into evidence, a certified copy of Hunter‘s driving record from the Bureau. Attached to that record was a letter dated May 1, 1985 addressed to Hunter stating that his driver‘s license had been suspended. The State offered no testimony or other showing thаt the letter had been mailed to Hunter.1 Hunter denied receiving the letter.
“(a) Whenever it appears from the records maintained in the bureau that a person‘s driving record brings him within the definition of an habitual violator under IC 9-12-1-4, the commissioner shall mail a notice to the person‘s last known address that informs the person that his driving privileges will be suspended in thirty (30) days because the person is an habitual violator according to the records of the bureau.
(b) Thirty (30) days after the commissioner hаs mailed a notice under this section, he shall suspend the person‘s driving privileges for:
(1) ten (10) years if the person is an habitual violator under IC 9-12-1-4(b);
(2) ten (10) years if thе person is an habitual violator under IC 9-12-1-4(c); or
(3) five (5) years if the person is an habitual violator under IC 9-12-1-4(d).
(c) The notice must inform the person that he may be entitled to relief under section 2 of this chapter or may seek judicial review of his suspension under this chapter.” (Emphasis added.)
While it is true that an аppellate court may not reweigh the evidence or judge the credibility of witnesses, there must be substantial evidence of probative valuе to sustain a conviction beyond a reasonable doubt. Pyle v. State (1985), Ind., 476 N.E.2d 124, 126. Although Hunter denied receiving the notification of license suspension, whether or not he received the letter is not the pivotal question. Pursuant to
Reversed.
GARRARD, P.J., concurs, except as to footnote 3 to which he dissents.
STATON, J., dissents with opinion.
STATON, Judge, dissenting.
I dissent from the Majority for the following reasons:
- The Majority has assumed the role of fact finder and substituted its findings for those of the jury.
- The Statute,
IC 9-12-2-1 , provides that when the driver‘s record shows that he is a habitual violator underIC 9-12-1-4 that “the commissioner shall mail a notice to the person‘s last known address ...” State’ Exhibit Number 1 shows a certified copy of the “Notice of Suspension“. This Exhibit was admitted in evidence and considered by the jury. (Tr. 160) - Hunter‘s denial that he never received the notice is a question of fact for the jury—not this Court of review; the jury did not beliеve Hunter‘s denial.
State‘s Exhibit Number 1 certifies that notice of suspension was mailed to Hunter. A copy of the letter of suspension and a copy of Hunter‘s driving record comprise State‘s Exhibit Number 1 which was admitted in evidence and considered by the jury in its deliberations. Hunter‘s testimony that he did not receive the letter of suspension is a question of fact for the jury. The jury did not believe Hunter. For our review, the matter of notice is closed and determined.
I would abandon the fact finding position assumed by the Majority and affirm the trial court.
Notes
“I, the Commissioner of the Bureau of Motor Vehicles of the State of Indiana, hereby certify [sic] that the following and hereto attached is a full, true and complete copy of the driving record and notice of suspension of George Hunter, D.O.B. 12/11/58, 1932 Maplehurst, Mishawaka, Indiana.”