Introduced Version






SENATE BILL No. 27

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DIGEST OF INTRODUCED BILL



Citations Affected: IC 35-34-1-5.

Synopsis: Habitual offender filing deadline. Permits amending an indictment or information to include a habitual offender charge at any time before trial if the amendment does not affect a particular defense or change the position of either of the parties. (The introduced version of this bill was prepared by the sentencing policy study committee.)

Effective: July 1, 2010.





Head




    January 5, 2010, read first time and referred to Committee on Corrections, Criminal, and Civil Matters.







Introduced

Second Regular Session 116th General Assembly (2010)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
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SENATE BILL No. 27



    A BILL FOR AN ACT to amend the Indiana Code concerning criminal law and procedure.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 35-34-1-5; (10)IN0027.1.1. -->     SECTION 1. IC 35-34-1-5, AS AMENDED BY P.L.178-2007, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 5. (a) An indictment or information which charges the commission of an offense may not be dismissed but may be amended on motion by the prosecuting attorney at any time because of any immaterial defect, including:
        (1) any miswriting, misspelling, or grammatical error;
        (2) any misjoinder of parties defendant or offenses charged;
        (3) the presence of any unnecessary repugnant allegation;
        (4) the failure to negate any exception, excuse, or provision contained in the statute defining the offense;
        (5) the use of alternative or disjunctive allegations as to the acts, means, intents, or results charged;
        (6) any mistake in the name of the court or county in the title of the action, or the statutory provision alleged to have been violated;
        (7) the failure to state the time or place at which the offense was

committed where the time or place is not of the essence of the offense;
        (8) the failure to state an amount of value or price of any matter where that value or price is not of the essence of the offense; or
        (9) any other defect which does not prejudice the substantial rights of the defendant.
    (b) The indictment or information may be amended in matters of substance and the names of material witnesses may be added, by the prosecuting attorney, upon giving written notice to the defendant at any time:
        (1) up to:
            (A) thirty (30) days if the defendant is charged with a felony; or
            (B) fifteen (15) days if the defendant is charged only with one (1) or more misdemeanors;
        before the omnibus date; or
        (2) before the commencement of trial;
if the amendment does not prejudice the substantial rights of the defendant. When the information or indictment is amended, it shall be signed by the prosecuting attorney or a deputy prosecuting attorney.
    (c) Upon motion of the prosecuting attorney, the court may, at any time before, during, or after the trial, permit an amendment to the indictment or information in respect to any defect, imperfection, or omission in form which does not prejudice the substantial rights of the defendant.
    (d) Before amendment of any indictment or information other than amendment as provided in subsection (b), of this section, the court shall give all parties adequate notice of the intended amendment and an opportunity to be heard. Upon permitting such amendment, the court shall, upon motion by the defendant, order any continuance of the proceedings which may be necessary to accord the defendant adequate opportunity to prepare his the defendant's defense.
    (e) An amendment of an indictment or information to include a habitual offender charge under IC 35-50-2-8, IC 35-50-2-8.5, or IC 35-50-2-10 must be made not later than ten (10) days after the omnibus date. However, upon a showing of good cause, the court may permit the filing of a habitual offender charge at may be made any time before the commencement of the trial if the amendment does not affect a particular defense or change the position of either of the parties.