dissenting.
Perhaps there is some avenue available for distinguishing between the situation at hand and those situations dealt with in Miller v. State (1981), 275 Ind. 454, 417 N.E.2d 339 and Wells v. State (1982), Ind., 487 N.E.2d 1333, however, I cannot locate one. In those cases the defendants were convicted of felonies and determined to be habitual offenders. In both the prosecutor was erroneously permitted to amend a habitual offender count by adding an additional prior conviction. The added convictions did not qualify under the habitual offender statute. The cases went to trial with evidence tending to prove the improper prior convictions being introduced along with evidence of at least two proper prior convictions. Such evidence was considered by the juries involved and they returned both determinations of habitual offender status and remanded for further consistent proceedings, although there was sufficient allegation of and evidence of two proper prior convictions in both cases. The court reasoned:
"[a] general verdict can not stand when the case was tried and submitted on two theories, one bona fide and the other not."
The reasoning was sanctioned by a unanimous court.
The State argues in this appeal that the prior felony convictions in those cases were "improper from the start", whereas in this case the prior theft conviction was valid until the 1984 vacation. I can't see why the time of determining invalidity makes the slightest difference. Furthermore, in this case, as in Miller & Wells, there is sufficient evidence from which the jury could have justly and reasonably determined habitual offender status, however the court refused to indulge in the inference or the assumption that the general jury verdict had sufficient integrity, to stand as a basis for the thirty year enhancement. The enhancement here is to life imprisonment.
Being unable to distinguish between cases in which one of more than three priors is knocked out on the one hand in a direct appeal, and on the other hand in a post-conviction proceeding, I vote to reverse and order either discharge or a new trial on the habitual offender count.
DICKSON, J., concurs.