LawServer Nav Menu

Indiana Code 35-50-2-8. Habitual offenders

     Note: This version of section effective until 7-1-2014. See also following version of this section, effective 7-1-2014.
    Sec. 8. (a) Except as otherwise provided in this section, the state may seek to have a person sentenced as a habitual offender for any felony by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated two (2) prior unrelated felony convictions.
    (b) The state may not seek to have a person sentenced as a habitual offender for a felony offense under this section if:
        (1) the offense is a misdemeanor that is enhanced to a felony in the same proceeding as the habitual offender proceeding solely because the person had a prior unrelated conviction;
        (2) the offense is an offense under IC 9-30-10-16 or IC 9-30-10-17; or
        (3) all of the following apply:
            (A) The offense is an offense under IC 16-42-19 or IC 35-48-4.
            (B) The offense is not listed in section 2(b)(4) of this chapter.
            (C) The total number of unrelated convictions that the person has for:
                (i) dealing in or selling a legend drug under IC 16-42-19-27;
                (ii) dealing in cocaine or a narcotic drug (IC 35-48-4-1);
                (iii) dealing in a schedule I, II, III controlled substance (IC 35-48-4-2);

                 (iv) dealing in a schedule IV controlled substance (IC 35-48-4-3); and
                (v) dealing in a schedule V controlled substance (IC 35-48-4-4);
            does not exceed one (1).
    (c) A person has accumulated two (2) prior unrelated felony convictions for purposes of this section only if:
        (1) the second prior unrelated felony conviction was committed after sentencing for the first prior unrelated felony conviction; and
        (2) the offense for which the state seeks to have the person sentenced as a habitual offender was committed after sentencing for the second prior unrelated felony conviction.
    (d) A conviction does not count for purposes of this section as a prior unrelated felony conviction if:
        (1) the conviction has been set aside;
        (2) the conviction is one for which the person has been pardoned; or
        (3) all of the following apply:
            (A) The offense is an offense under IC 16-42-19 or IC 35-48-4.
            (B) The offense is not listed in section 2(b)(4) of this chapter.
            (C) The total number of unrelated convictions that the person has for:
                (i) dealing in or selling a legend drug under IC 16-42-19-27;
                (ii) dealing in cocaine or a narcotic drug (IC 35-48-4-1);
                (iii) dealing in a schedule I, II, III controlled substance (IC 35-48-4-2);
                (iv) dealing in a schedule IV controlled substance (IC 35-48-4-3); and
                (v) dealing in a schedule V controlled substance (IC 35-48-4-4);
            does not exceed one (1).
    (e) The requirements in subsection (b) do not apply to a prior unrelated felony conviction that is used to support a sentence as a habitual offender. A prior unrelated felony conviction may be used under this section to support a sentence as a habitual offender even if the sentence for the prior unrelated offense was enhanced for any reason, including an enhancement because the person had been convicted of another offense. However, a prior unrelated felony conviction under IC 9-30-10-16, IC 9-30-10-17, IC 9-12-3-1 (repealed), or IC 9-12-3-2 (repealed) may not be used to support a sentence as a habitual offender.
    (f) If the person was convicted of the felony in a jury trial, the jury shall reconvene for the sentencing hearing. If the trial was to the court or the judgment was entered on a guilty plea, the court alone shall conduct the sentencing hearing under IC 35-38-1-3.
    (g) A person is a habitual offender if the jury (if the hearing is by

jury) or the court (if the hearing is to the court alone) finds that the state has proved beyond a reasonable doubt that the person had accumulated two (2) prior unrelated felony convictions.
    (h) The court shall sentence a person found to be a habitual offender to an additional fixed term that is not less than the advisory sentence for the underlying offense nor more than three (3) times the advisory sentence for the underlying offense. However, the additional sentence may not exceed thirty (30) years.
As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977, P.L.340, SEC.121; Acts 1980, P.L.210, SEC.1; P.L.335-1983, SEC.1; P.L.328-1985, SEC.2; P.L.1-1990, SEC.353; P.L.164-1993, SEC.13; P.L.140-1994, SEC.14; P.L.305-1995, SEC.1; P.L.166-2001, SEC.3; P.L.291-2001, SEC.226; P.L.71-2005, SEC.11.

Indiana Code 35-50-2-8. Habitual offenders

     Note: This version of section effective 7-1-2014. See also preceding version of this section, effective until 7-1-2014.
    Sec. 8. (a) The state may seek to have a person sentenced as a habitual offender for a felony by alleging, on one (1) or more pages separate from the rest of the charging instrument, that the person has accumulated the required number of prior unrelated felony convictions in accordance with this section.
    (b) A person convicted of murder or of a Level 1 through Level 4 felony is a habitual offender if the state proves beyond a reasonable doubt that:
        (1) the person has been convicted of two (2) prior unrelated felonies; and
        (2) at least one (1) of the prior unrelated felonies is not a Level 6 felony or a Class D felony.
    (c) A person convicted of a Level 5 felony is a habitual offender if the state proves beyond a reasonable doubt that:
        (1) the person has been convicted of two (2) prior unrelated felonies;
        (2) at least one (1) of the prior unrelated felonies is not a Level 6 felony or a Class D felony; and
        (3) if the person is alleged to have committed a prior unrelated:
            (A) Level 5 felony;
            (B) Level 6 felony;
            (C) Class C felony; or
            (D) Class D felony;
        not more than ten (10) years have elapsed between the time the person was released from imprisonment, probation, or parole (whichever is latest) and the time the person committed the current offense.
    (d) A person convicted of a Level 6 felony is a habitual offender if the state proves beyond a reasonable doubt that:
        (1) the person has been convicted of three (3) prior unrelated felonies; and
        (2) if the person is alleged to have committed a prior unrelated:
             (A) Level 5 felony;
            (B) Level 6 felony;
            (C) Class C felony; or
            (D) Class D felony;
        not more than ten (10) years have elapsed between the time the person was released from imprisonment, probation, or parole (whichever is latest) and the time the person committed the current offense.
    (e) The state may not seek to have a person sentenced as a habitual offender for a felony offense under this section if the current offense is a misdemeanor that is enhanced to a felony in the same proceeding as the habitual offender proceeding solely because the person had a prior unrelated conviction. However, a prior unrelated felony conviction may be used to support a habitual offender determination even if the sentence for the prior unrelated offense was enhanced for any reason, including an enhancement because the person had been convicted of another offense.
    (f) A person has accumulated two (2) or three (3) prior unrelated felony convictions for purposes of this section only if:
        (1) the second prior unrelated felony conviction was committed after commission of and sentencing for the first prior unrelated felony conviction;
        (2) the offense for which the state seeks to have the person sentenced as a habitual offender was committed after commission of and sentencing for the second prior unrelated felony conviction; and
        (3) for a conviction requiring proof of three (3) prior unrelated felonies, the third prior unrelated felony conviction was committed after commission of and sentencing for the second prior unrelated felony conviction.
    (g) A conviction does not count for purposes of this section as a prior unrelated felony conviction if:
        (1) the conviction has been set aside; or
        (2) the conviction is one for which the person has been pardoned.
    (h) If the person was convicted of the felony in a jury trial, the jury shall reconvene for the sentencing hearing. If the trial was to the court or the judgment was entered on a guilty plea, the court alone shall conduct the sentencing hearing under IC 35-38-1-3. The role of the jury is to determine whether the defendant has been convicted of the unrelated felonies. The state or defendant may not conduct any additional interrogation or questioning of the jury during the habitual offender part of the trial.
    (i) The court shall sentence a person found to be a habitual offender to an additional fixed term that is between:
        (1) zero (0) and twenty (20) years, for a person convicted of murder or a Level 1 through Level 4 felony; or
        (2) zero (0) and six (6) years, for a person convicted of a Level 5 or Level 6 felony.
An additional term imposed under this subsection is nonsuspendible.
    (j) Habitual offender is a status that results in an enhanced sentence. It is not a separate crime and does not result in a consecutive sentence. The court shall attach the habitual offender enhancement to the felony conviction with the highest sentence imposed and specify which felony count is being enhanced. If the felony enhanced by the habitual offender determination is set aside or vacated, the court shall resentence the person and apply the habitual offender enhancement to the felony conviction with the next highest sentence in the underlying cause, if any.
    (k) A prior unrelated felony conviction may not be collaterally attacked during a habitual offender proceeding unless the conviction is constitutionally invalid.
    (l) The procedural safeguards that apply to other criminal charges, including:
        (1) the requirement that the charge be filed by information or indictment; and
        (2) the right to an initial hearing;
also apply to a habitual offender allegation.
As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977, P.L.340, SEC.121; Acts 1980, P.L.210, SEC.1; P.L.335-1983, SEC.1; P.L.328-1985, SEC.2; P.L.1-1990, SEC.353; P.L.164-1993, SEC.13; P.L.140-1994, SEC.14; P.L.305-1995, SEC.1; P.L.166-2001, SEC.3; P.L.291-2001, SEC.226; P.L.71-2005, SEC.11; P.L.158-2013, SEC.661.