dissenting.
I respectfully dissent from the majority's conclusion that the trial court properly dismissed the habitual substance offender information against Downey as an improper second enhancement.
The majority relies upon the supreme court's decision in Ross v. State I acknowledge that Ross held that a handgun conviction already enhanced from a Class A misdemeanor to a Class D felony could not be further enhanced by the general habitual offender statute. 729 N.E.2d at 115. However, both the facts of Ross and the statutes at issue therein are distinguishable from the facts and statutes presented here. Ross involved the general habitual offender statute, Ind.Code § 35-50-2-8, whereas here, the habitual substance offender statute is implicated. Ind. Code § 35-50-2-10. The distinction is significant.
In Freeman v. State, our supreme court held that the legislature did not intend for a defendant to be punished under both the statute enhancing operating while intoxicated to a Class D felony and the habitual substance offender statute. 658 N.E.2d 68, 71 (Ind.1995). The habitual substance offender statute provides that a defendant who commits two unrelated substance offenses is subject to a sentence enhancement of up to eight years upon conviction for his third unrelated substance offense. At the time Freeman was decided, the habitual substance offender statute defined "substance offense" to be any "Class A misdemeanor or Class D felony involving the possession, use, abuse, delivery, transportation, or manufacture of alcohol or drugs." Because there was no clear legislative intent to include OWI offenses in the *379definition of a "substance offense," double enhancement was not permitted. Id. See also Devore v. State, 657 N.E.2d 740, 742 (Ind.1995). Thereafter, the legislature amended section 385-50-2-10 to add more specific language to the statutory definition of a "substance offense": the term now specifically includes "an offense under IC 9-30-5. ..." The new, amended definition encompasses all offenses listed in Indiana Code chapter 9-30-5, including the Class D felony enhancement. In Weida v. State, this court held that the amendment expressed the clear legislative language found to be absent in Freeman and Devore. 693 N.E.2d 598, 601 (Ind.Ct.App.1998), trans. denied. Therefore, under the amended statute, double enhancement of an OWI conviction both as a Class D felony and as an habitual substance offender was proper. Id. See also Roberts v. State, 725 N.E.2d 441, 446 (Ind.Ct.App.2000), trans. denied, Weaver v. State, 702 N.E.2d 750, 752 (Ind.Ct.App.1998). Ross held that the general habitual offender statute "can be viewed as being as broad as the [pre-amendment] habitual substance offender statute in Freeman." 729 N.E.2d at 116. The general habitual offender statute has not been amended in this respect. Thus, Ross is not the appropriate test by which to judge Downey's charges.
The Freeman/Weide lines of cases are not directly applicable here, as Downey was charged with possession of marijuana enhanced to a Class D felony and also with being an habitual substance offender. However, in a similar vein to the operating while intoxicated cases, it appears that the habitual substance offender statute has been amended in relation to possession offenses as well. An earlier version of the statute defined a substance offense to be "a Class A misdemeanor or Class D felony in which the use, abuse, delivery, transportation, or manufacture of aleohol or drugs is a material element of the crime." Ind. Code § 35-50-2-10(a) (1983). In Marshall v. State, this court noted that its face this statutory definition of the term 'substance offense' does not include the crime of possession of aleohol or drugs although 'use, abuse, delivery, transportation, or manufacture' can not exist without possession. But possession, also a crime, is not mentioned." 493 N.E.2d 1317, 1318-19 (Ind.Ct.App.1986). Because the statutory definition of a "substance offense" did not specifically include "possession" offenses, and because the predicate offense relied upon in charging the defendant as an habitual substance offender were possession offenses, we held that the defendant's sentence could not be enhanced pursuant to the statute. Subsequently,1 the statutory definition of a "substance offense" was amended to specifically include offenses in which the possession of a drug was a material element. Ind.Code § 385-50-2-10(a) (1985).
Because the habitual substance offender statute now specifically references "possession" in the definition of a "substance offense," and because the statute had been amended to so say, there is a clear indication of legislative intent to impose double punishment pursuant to the habitual substance offender statute for any offense alleging possession of a drug. Thus, the State properly charged Downey with being an habitual substance offender, and the *380trial court improperly dismissed the information. , I would reverse and remand for further proceedings.
. The statute was actually amended some time prior to the decision in Marshall, but after Marshall's trial and conviction. The court was constrained to apply the statute in effect at the time of Marshall's trial in determining whether he was subject to the habitual substance offender enhancement. The Mar shall court referenced the amendment and cited it as further support for its holding that the statute, as originally written, did not include possession offenses.