concurring and dissenting.
I concur in the majority opinion in its affirmance of the trial court as to Counts I and II, but dissent as to its reversal of the trial court on Count III. First, I cannot join the majority in its conclusions on this issue for the same reasons expressed in my dissenting opinion in Cherry v. State, (1981) Ind., 414 N.E.2d 301.
Second, as the majority opinion states, the prosecutor had been aware of Defendant's prior conviction but had not obtained all of the necessary documents to prove an habitual offender charge at the time trial started. Rather than seek a continuance, the prosecutor decided to proceed with the burglary and theft charges when all witnesses would be present. The trial was aborted on the very first witness. The record shows here that Count III, suggesting that Defendant was an habitual offender, was filed on August 7, 1979, and amended on August 17, 1979. The trial did not begin until December 15, 1980.
This Court has consistently held that habitual criminal is an enhanced sentencing feature that can be filed by the State at any time providing the defendant has notice with sufficient time to prepare his defense to that issue. Norris v. State, (1979) 271 Ind. 568, 394 N.E.2d 144; Howard v. State, (1978) 268 Ind. 589, 377 N.E.2d 628. See also McConnell v. State, (1982) Ind., 436 N.E.2d 1097, at 1102.
I dissent from the majority opinion and would affirm the trial court on all issues.
GIVAN, C.J., concurs.