dissenting.
The trial court held a hearing on the petition for post-conviction relief and entered judgment for the State. The court judged that the attempted murder instruction correctly stated the law and did not consider the State's defenses of res judicata, or finality, and laches. The trial court based its judgment on the fact that the attempted murder instruction was essentially the same as instructions approved in Santana v. State and Worley v. State. See Santana v. State, Ind., 486 N.E.2d 1010 (1986); Worley v. State, Ind., 501 N.E.2d 406 (1986). As the trial court concluded, the instructions in Santana, Worley, and the case at bar are essentially the same: they all required the State to prove the defendant knowingly or intentionally took a substantial step toward a knowing or intentional killing.
The instruction in Spradlin v. State was distinctly different, however. Unlike the Santana and Worley instructions, it was of the "murder" genre. It said that the State was required to prove that a knowing or intentional step was taken toward "murder" rather than a "killing." Spradlin v. State, Ind., 569 N.E.2d 948 (1991). Indeed, this Court expressly noted that distinction in Spradlin. Id. at 951. In my view, Spradlin should mainly be recognized for its expression of this Court's firm resolve to require instructions to employ plain "intent to kill" statements, and not for directly confronting the language in Santana and Worley.
It should now be noted that Santana and Worley were first directly condemned in Taylor v. State, Ind., 616 N.E.2d 748 (1993). Like Santana, Worley, and Spradlin, Taylor was a direct appeal. Taylor was not decided until a year after appellant's appeal from the denial of his first post-conviction petition was concluded and the trial court's judgment denying him post-conviction relief upon his see-ond post-conviction petition had been rendered. Additionally, it was even later in 1994 that Spradlin was applied in a post-conviction proceeding. See Simmons v. State, Ind., 642 N.E.2d 511 (1994). In conclusion, I would say that Taylor and Simmons mark a change in the law after the denial of appellant's original post-conviction petition, one favorable to appellant's ground for relief urged in his original petition. He has heretofore diligently presented that claim in the courts. In consideration of the due administration of justice and in light of the new direction of Taylor and Simmons, I cannot say that representment of the same claim should now be barred by the prior post-conviction judgment.