ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Joe Keith Lewis Karen M. Freeman-Wilson
Marion, Indiana Attorney General of Indiana
Timothy W. Beam
Deputy Attorney General
SUPREME COURT OF INDIANA
DARNELL CARTER ) ) Appellant (Defendant Below ), ) ) No. 79S02-0107-CR-327 v. ) in the Supreme Court ) STATE OF INDIANA, ) No. 79A02-9910-CR-738 ) in the Court of Appeals Appellee (Plaintiff Below ). )
July 17, 2001
A jury found Carter guilty of Counts I and II.See footnote Carter then
waived his right to a jury trial on the third charge. The
court conducted a bench trial and found Carter guilty on Count III.
After a sentencing hearing, the court entered a judgment of conviction and sentence
for Count III, the class D felony, only.See footnote
The Court of Appeals correctly rejected all of the contentions Carter made on
Carter v. State, 734 N.E.2d 600 (Ind. Ct. App. 2000).
We summarily affirm its resolution of these issues. Ind. Appellate Rule 58(A)(2).
The court then said:
As a final point, although not raised by the appellant, we conclude sua sponte that both the operating while intoxicated conviction as a class A misdemeanor and the operating while intoxicated conviction with having a previous operating while intoxicated conviction within the past five years as a class D felony may not stand. The class A misdemeanor conviction is subsumed by the enhanced class D felony conviction.
Judgment affirmed in part and reversed in part and remanded to the trial court with instructions to vacate the class A misdemeanor conviction.
Carter, 734 N.E.2d at 605. It thus followed the practice adopted in Redman v. State, 679 N.E.2d 927, 932 (Ind. Ct. App. 1997), in which the Court of Appeals deemed it necessary to order vacating a lesser included offense on which there was no judgment and no sentence, while expressing concern that such a practice put the trial courts in a difficult position. We granted transfer to relieve them of this burden.
This periodic mingling of terms, however, should not obscure the fact that a
guilty verdict and a judgment of conviction are two rather different things.
It is highly ordinary that a jury (or, as with Count III here,
a judge in a bench trial) may hear evidence about multiple counts during
a single trial and determine guilt on each of them. These findings
of guilt do not mean that a defendant has faced multiple sentences or
multiple judgments of conviction. Asking the jury to deliberate on all potential
charges that are supported by the evidence is a sensible and efficient practice.
A verdict of guilty can certainly be a significant legal event, but
only if a court later enters judgment on it. A verdict on
which the trial court enters judgment notwithstanding the verdict,
See footnote for example, is a
victory for the defendant. Similarly, a verdict of guilt on which no
judgment or sentence has been entered would not constitute legal grounds for incarceration.
We treat the judgments and sentences entered by courts in a different way.
When two or more of the charges constitute the same offense for double
jeopardy purposes, for example, the defendant may not be punished on all the
See, e.g., Duncan v. State, 735 N.E.2d 211, 212, 214 (Ind.
2000)(jury found defendant guilty of murder, felony murder, robbery, and auto theft, but
court properly sentenced for murder and robbery only because the other two charges
were lesser included offenses). This is true when a court enters convictions
and sentences on a greater and lesser offense. Mason v. State, 532
N.E.2d 1169 (Ind. 1989), cert. denied, 490 U.S. 1049 (1989).
Indeed, we have regarded a judgment of conviction as constituting punishment even if
the defendant avoids imprisonment. Here, for example, the fact of Carters prior
OWI conviction justified enhancement of the current charge from misdemeanor to felony status,
without regard to whether any sentence was imposed for that prior conviction.
See also Patton v. State, 242 Ind. 477, 488, 179 N.E.2d 867, 872
(1962)(A sentence, although suspended, places some limitation upon the conduct of the party
involved and, to this extent, it is a penalty imposed.).
Our statutes likewise suggest that a verdict by a jury and a judgment
issued by a court are two rather different acts from which different consequences
flow. They describe a two-tier process of verdicts or findings that are
usually, but not invariably, followed by conviction and sentencing.
Indiana Code Ann. Title 35, article 38, Proceedings Following Dismissal, Verdict, or Finding,
sets forth what follows the jurys or judges factual findings. Chapter 1,
Entry of Judgment and Sentencing, reads in part: After a verdict, finding,
or plea of guilty, if a new trial is not granted, the court
shall enter a judgment of conviction. Ind. Code Ann. § 35-38-1-1(a) (West
See footnote Indiana Code Ann. § 35-38-1-6 (West 2000) qualifies this
mandate: Whenever (1) a defendant is charged with an offense and an
included offense in separate counts; and (2) the defendant is found guilty of
both counts; judgment and sentence may not be entered against the defendant for
the included offense.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.