dissenting.
The case precedent which controls our determination in this case is State v. Starks, 816 N.E.2d 32 (Ind.2004). In that case, our Supreme Court held that "it is not a sufficient basis for relief that the underlying offense has been set aside on procedural grounds." Id. at 35 (emphasis supplied). The procedural grounds for the setting aside of Starks's driving while intoxicated conviction was apparently that Starks had pleaded guilty to that offense without benefit of counsel. Id. at 33 n. 2. For this reason, the Supreme Court determined that the post-conviction court erred in granting relief. Id. at 85.
The Starks court did certainly confirm the principle that it is the fact of driving after a habitual suspension has been imposed that is crucial, whether or not that habitual offender determination is subject to attack. As set forth in Stewart v. State, 721 N.E.2d 876, 880 (Ind.1999) and reiterated in State v. Hammond, 761 N.E.2d 812, 815 (Ind.2002): "The focus is not on the reliability or non-reliability of the underlying [habitual violator] determination, but on the mere fact of the determination."
*1065Be that as it may, the Supreme Court in Starks clearly noted that "if the underlying offense was not committed, for example, by proving that the BMV erroneously included the defendant as the same person as the offender in the subsequent court," the error would be "material" and would entitle the defendant to pursue post-conviction relief. 816 N.E.2d at 35.
Here the error was "material" and was not, as in Starks, Hammond, Stewart, and Pebley v. State, 686 N.E.2d 168 (Ind.Ct.App.1997), a mere procedural defect.1
The posture of the case before us is unlike those other cases involving a mere procedural defect. If Hoaks were merely relying upon the St. Joseph Cireuit Court December 2004 procedural defect decision, I would agree with the majority that case precedent dictates that Hoaks is not entitled to post-conviction relief. That is not the situation before us, however.
Following the St. Joseph Cireuit Court procedural decision, a judicial review was conducted with reference to the actual merits of the habitual offender determination, and the trial court in that setting determined that Hoaks did not commit one of the three predicate offenses upon which the BMV determination and suspension was founded. This seems to me clearly a material error undercutting the habitual offender suspension for all purposes.
For these reasons, I respectfully dissent. I would reverse and remand for further proceedings.
. As earlier noted, in Starks the procedural defect was that the defendant's guilty plea to one of the of the predicate offenses implicated in the habitual violator determination was without benefit of counsel. Hammond and Stewart both involved the procedural defects of inadequate notice from the BMV as to the determination and suspension. Pebley was the case relied upon by the December 6, 2004 St. Joseph Circuit Court decision determining that Hoaks's habitual offender suspension was invalid presumably because, as in Pebley, the BMV notice was inadequate.