dissenting.
I dissent from the Majority Opinion for these reasons:
1. fundamental errors exists;
2. the trial court ignored due process;
3. the amendment statute was not followed.
The Majority Opinion recognizes that the Class D felony was not a lesser included offense of the Class C felony charged in the information. The affirmance of the conviction is justified by stating that there was an amendment to the information and that the defendant failed to object. It treats the attempted amendment by the State as one of form rather than one of substance. This is a regretable oversight by the Majority. Admittedly, the Class D felony was a separate offense; therefore, any amendment which changed the original elements of the offense would amount to an amendment of substance. Mentzer v. State (1973), Ind.App., 296 N.E.2d 134. Any amendment of the information as to substance is covered by statute, IC 35-34 1-5(b).
The Statute requires a written notice to the defendant thirty days before the omnibus date and that the amended information be signed by the prosecutor. Neither of these statutory requirements were performed by the prosecutor. No second information containing a new charge upon which a conviction could rest was ever prepared by the prosecutor.
What did happen in an attempt to amend the information? From the exchange at the bench, it appears that the trial court and the State assumed that the Class D felony was a lesser included offense-an instruction was given; however, the motion «to amend by the State was an oral motion: "In that case, the State would move to amend by interlineation the charge of molesting, attempted child molesting." There is nothing in the record to indicate whether the trial court ever accepted the oral amendment by interlineation. Murphy v. State (1986), Ind., 499 N.E.2d 1077, 1083 (Amendment not effective until the trial court accepts it.). Also, Mentzer v. State, supra; Embry v. State (1951) 229 Ind. 179, 96 N.E.2d 274 (If intent is an element of the crime, it must be charged.); Abner v. State (1986), Ind., 497 N.E.2d 550 at 553 (The elements and the nature of the of fense must be set out in the information).
The defendant was denied due process of law when a substantive change in the information was attempted by the prosecutor. A fundamental error occurred when the substantive change was attempted without following the statute. The defendant was not provided with an opportunity to prepare his defense and was not properly advised that a new offense had been charged with different elements of proof required. As Judge Buchanan pointed out in Lechner v. State (1982), Ind.App., 439 N.E.2d 1203: "Conviction upon a charge not made or for an offense that is not a lesser included offense of the charged erime constitutes a denial of due process-fundamental error which may be raised for the first time on appeal." (citations omitted) at 1205. No objection from the defendant is necessary.
I would reverse the conviction. As a matter of law, it is a nullity. Walker v. State (1968), 251 Ind. 432, 241 N.E.2d 792; Indiana Constitution Article 1, Section 13.