FOR PUBLICATION

ATTORNEY FOR APPELLANT:	ATTORNEYS FOR APPELLEE:

A. LUIS ORTIZ				JEFFREY A. MODISETT

Ortiz & Associates, P.C.			Attorney General of Indiana

Indianapolis, Indiana

						CAROL A. NEMETH

						Deputy Attorney General

						Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

SHANNON S. TAFLINGER, SR.,		)

						)

	Appellant-Defendant,			)

						)

		vs.				)		No.  34A05-9702-CR-68

						)

STATE OF INDIANA,			)

						)

	Appellee-Plaintiff.			)

APPEAL FROM THE HOWARD CIRCUIT COURT

The Honorable Lynn Murray, Judge

Cause No.  34C01-9303-CF-27

March 31, 1998

JUulyJuly 16, 1998

OPINION - FOR PUBLICATION

RUCKER, 

Judge

************************************************************************

TO:		Judge Rucker	 

FROM: 	J. Wesley Simms, III

RE:		Taflinger v. State

	Court of Appeals Cause No.: 34A05-9702-CR-68

	Lower Court Cause No.: 34C01-9303-CF-00027

Date Assigned: 25 September 1997

First Draft Submitted: 20 February 1998

WordPerfect ID: O:\Taflinger

File System Headings:

	CRIMINAL

		DISMISSAL		

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	Appellant-Defendant Shannon S. Taflinger, Sr. ("Taflinger") appeals his conviction

of Neglect of a Dependent Causing Serious Bodily Injury.  He raises one issue for review

which we rephrase as whether Taflinger's sentencing on a previously dismissed conviction

violates the prohibition against double jeopardy. 

	We affirm.

	The facts reveal that on October 29, 1993 Taflinger was convicted of attempted

murder, and neglect of a dependent child. The convictions arose out of Taflinger's conduct

in violently shaking his then six-week old son rendering him brain dead. At sentencing,

Taflinger moved for directed verdict or to set aside the neglect conviction on double jeopardy

grounds. In response the State agreed that the prohibition against double jeopardy required

merger of the attempted murder conviction with the neglect of a dependent conviction  for

purposes of sentencing. However, rather than request the court to merge the two convictions,

the prosecutor instead moved to dismiss the neglect conviction. Taflinger responded that he

had no objection to the State's  motion. The trial court then granted the motion and sentenced

Taflinger to thirty years on the attempted murder conviction only.

	On appeal to this court Taflinger's conviction was reversed because of fundamental

error with respect to the attempted murder instruction. See Taflinger v. State, 34A05-9402- CR-63 (June 19, 1995). More specifically, we reversed because the jury had not been

instructed that the defendant must have entertained the specific intent to kill when he

engaged in the conduct constituting a substantial step toward the crime of murder. Id. On remand apparently there was no effort made to retry Taflinger on the attempted murder

charge. Rather, on November 2, 1995 the State filed an Information again charging  Taflinger

with neglect of  a dependant. Thereafter on August 13, 1996 the State filed a motion to

reinstate the previously dismissed neglect conviction. The trial court granted the motion and

after conducting a sentencing hearing, the trial court sentenced Taflinger to fifteen years imprisonment on

the neglect offense. charge. This appeal followed. 

	The sole issue presented for our review is whether the trial court violated the

prohibition against double jeopardy by imposing sentence on a verdict that had been

previously dismissed. We think not. The Double Jeopardy Clause provides that no person

"shall be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const.

amend. V. This clause yields  three protections: (1) protection from reprosecution for the

same offense after an acquittal; (2) protection from reprosecution for the same offense after

conviction; and (3) protection from multiple punishments for the same offense. Kennedy v. State, 674 N.E.2d 966, 967 (Ind. 1996) citing Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969).  In this case there is no question presented concerning

multiple punishments. Rather, Taflinger contends that he is being twice prosecuted. We

disagree. Taflinger is not being subject to reprosecution, rather he is being subject to resentencing.1 

	It is clear that where a  defendant's  conviction is reversed on appeal, the defendant

can be resentenced after retrial without violating the prohibition against double jeopardy. 

See e.g. Warner v. State, 579 N.E.2d 1307, 1311 (Ind. 1991)("Though double jeopardy bars retrial in cases of reversal for insufficient evidence, it does not bar retrial in cases of reversal

for trial error."); Hastings v. State, 560 N.E.2d 664, 670 (Ind. Ct. App. 1990) trans. denied. ("the general rule is that retrial of the defendant is permissible when the conviction is

reversed on grounds other than sufficiency of the evidence."). More to the point, where a

defendant has been previously convicted and the conviction has been erroneously set aside

or vacated by the trial court, the defendant may be later sentenced without there existing a

double jeopardy violation. See e.g. State v. Haines, 545 N.E.2d 834, 835 n. 4 (Ind. Ct. App. 1989) (ordering reinstatement of jury verdicts after trial court vacated them noting ""[w]

observe sua sponte that reinstatement of  the jury's verdict is not barred by double jeopardy principles."). 

	In State v. Monticello Developers, Inc., 527 N.E.2d 1111 (Ind. 1988) reh. denied  (Monticello III) the defendant, an intermediate care facility, was charged with neglect of a dependant as a Class D felony. After a trial by jury the defendant was convicted of  criminal

recklessness as a lesser included offense. On motion by the defendant, the trial court entered

judgment on the evidence in the defendant's favor. The State appealed to this court. We

reversed and instructed the trial court to enter judgment of conviction and proceed to

sentencing. See State v. Monticello Developers, Inc., 502 N.E.2d 927 (Ind. Ct. App. 1987) trans. granted (Monticello I).  On transfer our supreme court held that although the trial court's judgment was erroneous, the judgment nonetheless was an acquittal on the evidence

and thus re-entry of the conviction was barred by the double jeopardy clause. See State v. Monticello Developers, Inc., 515 N.E.2d 1070 (Ind. 1987) (Monticello II). Thereafter, on petition for rehearing the supreme court remanded the case to the trial court "to enter

judgment on the jury verdict of guilty and proceed accordingly." Monticello III at 1112. In so doing the court relied on federal authority for the proposition the purpose of the double

jeopardy clause is "primarily 'directed at the threat of multiple prosecutions . . . .' " [citation

omitted] Id. quoting Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204 (1957). The court continued:

The underlying idea . . .is that the State with all its resources and power should

not be allowed to make repeated attempts to convict an individual for an

alleged offense, thereby subjecting him to embarrassment, expense and ordeal

and compelling him to live in a continuing state of anxiety an insecurity, as well as enhancing the possibility that even though innocent he may be found

guilty.

Id. at 1112. The court noted that in the case before it the State would not have another opportunity to prove its case. That was so because the existing jury verdict made a second

trial unnecessary. Id. The same rationle is applicable here. By reinstating the jury's verdict of guilty and sentencing Taflinger accordingly, the trial court was not affording the State

another opportunity to prove its case. That had already been accomplished. Becasue

Taflinger was not threatned with nor subject to a reprosectuion there was double jeopardy

bar.

	It is true that the better practice and more prudent course of action in this case would

have been for the trial court to merge the two offenses at the initial sentencing hearing.2 Thus, when the greater offense of attempted murder was reversed on appeal, if on remand the State decided not to retry the greater offense, then the trial court would only have had to

sentence the defendant on the lesser charge. See Anderson v. State, 674 N.E.2d 184 (Ind. Ct. App. 1996)(vacating judgment and sentence as to the offense of aggravated battery as a class

B felony and remanding the case with instructions to enter judgment and sentence on the

lesser included offense of battery with a deadly weapon as a class C felony). Nonetheless

because the trial court's resentencing of Taflinger after remand was not a reprosecution, the

prohibition against double jeopardy was not violated.

	Judgment affirmed.

	Appellant-Defendant Shannon S. Taflinger, Sr. ("Taflinger") appeals his conviction of Neglect of a Dependent Causing Serious Bodily Injury.  He raises one issue for review

which we rephrase as whether Taflinger's sentencing on a previously dismissed conviction

violates the prohibition against double jeopardy.  We conclude that it does not and therefore

affirm.

	The facts reveal that on October 29, 1993 Taflinger was convicted of attempted

murder and neglect of a dependent child.  The convictions arose out of Taflinger's conduct

in violently shaking his then six-week-old son rendering him brain dead.  At sentencing,

Taflinger moved for directed verdict or to set aside the neglect conviction on double jeopardy

grounds.  In response the State agreed that the prohibition against double jeopardy required

merger of the attempted murder conviction with the neglect of a dependent conviction for

purposes of sentencing.  However, rather than request the court to merge the two convictions,

the prosecutor instead moved to dismiss the neglect conviction.  Taflinger responded that he

had no objection to the State's motion.  The trial court then granted the motion and sentenced

Taflinger to thirty years on the attempted murder conviction only.

	On appeal to this court Taflinger's conviction was reversed because of fundamental

error with respect to the attempted murder instruction.  See Taflinger v. State, No. 34A05- 9402-CR-63 (June 19, 1995).  More specifically, we reversed because the jury had not been

instructed that the defendant must have entertained the specific intent to kill when he

engaged in the conduct constituting a substantial step toward the crime of murder.  Id.  On remand apparently there was no effort made to retry Taflinger on the attempted murder charge.  Rather, on November 2, 1995 the State filed an Information again charging 

Taflinger with neglect of a dependant child.  Thereafter on August 13, 1996 the State filed

a motion to reinstate the previously dismissed neglect conviction.  The trial court granted the

motion, and after conducting a sentencing hearing the trial court sentenced Taflinger to

fifteen years imprisonment on the neglect conviction.  This appeal followed. 

	The sole issue presented for our review is whether the trial court violated the

prohibition against double jeopardy by imposing sentence on a verdict that had been

previously dismissed.   The Double Jeopardy Clause provides that no person "shall be subject

for the same offensce to be twice put in jeopardy of life or limb."  U.S. Const. amend. V.  This

clause yields three protections:  (1) protection from reprosecution for the same offense after

an acquittal; (2) protection from reprosecution for the same offense after conviction; and (3)

protection from multiple punishments for the same offense.  Kennedy v. State, 674 N.E.2d 966, 967 (Ind. 1996) citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969).  In this case there is no question presented concerning multiple

punishments.  Rather, Taflinger contends that he is being twice prosecuted.  However, as we

discuss below Taflinger is not being subjected to reprosecution, rather he is being subjected

to resentencing.1 

	We first observe that at the initial sentencing hearing the trial court properly dismissed Taflinger's conviction for neglect of a dependant.  As charged, the offense was a factually included lesser offense of attempted murder.2   It is true a defendant may be charged and tried with greater and lesser included offenses under the same indictment or information.  Redman v.  State, 679 N.E.2d 927, 929 (Ind.  Ct.  App.  1997), trans. denied..   However, a defendant may not be convicted and sentenced upon the lesser offense when a sentenced is imposed also upon the greater offense.  Mason v.  State, 532 N.E.2d 1169, 1172 (Ind.  1989) ( holding as "inappropriate" the trial court's "merger"  of a lesser offense into a greater offense

for purposes of sentencing).  Where a defendant is found guilty of both the greater offense

and the lesser included offense "the trial court's proper procedure is to vacate the conviction

of the included offense."  Redman,  679 N.E.2d at 932.  The trial court followed that procedure here. 

	It is clear that where a defendant's conviction is reversed on appeal,  under some

circumstance the defendant can be resentenced after retrial without violating the prohibition against double jeopardy.  See, e.g. Warner v. State, 579 N.E.2d 1307, 1311 (Ind. 1991) ("Though double jeopardy bars retrial in cases of reversal for insufficient evidence, it does

not bar retrial in cases of reversal for trial error."); Hastings v. State, 560 N.E.2d 664, 670 (Ind. Ct. App. 1990), trans. denied, ("[t]he general rule is that retrial of the defendant is permissible when the conviction is reversed on grounds other than sufficiency of the

evidence.").  More to the point, where a defendant has been previously convicted and the

conviction has been set aside or vacated by the trial court, the defendant may be later

sentenced without there existing a double jeopardy violation.  See, e.g. State v. Haines, 545 N.E.2d 834, 835 n.4 (Ind. Ct. App. 1989), trans. denied, (ordering reinstatement of jury verdicts after trial court vacated them noting "[w]e observe sua sponte that reinstatement of the jury's verdict is not barred by double jeopardy principles."). 

	In State v. Monticello Developers, Inc., 502 N.E.2d 927 (Ind. Ct. App. 1987) (Monticello I), vacated by, 515 N.E.2d 1070 (Ind. 1987) the defendant, an intermediate care facility, was charged with neglect of a dependant as a Class D felony.  After a trial by jury

the defendant was convicted of criminal recklessness as a lesser included offense.  On motion

by the defendant, the trial court entered judgment on the evidence in the defendant's favor. 

The State appealed to this court.  We reversed and instructed the trial court to enter judgment

of conviction and proceed to sentencing.  On transfer our supreme court held that although

the trial court's judgment was erroneous, the judgment nonetheless was an acquittal on the

evidence and thus re-entry of the conviction was barred by the double jeopardy clause.  State v. Monticello Developers, Inc., 515 N.E.2d 1070 (Ind. 1987)(Monticello II), vacated by, 527 N.E.2d 1111 (Ind. 1988).  Thereafter, on petition for rehearing the supreme court remanded

the case to the trial court "to enter judgment on the jury verdict of guilty and proceed

accordingly."  State v. Monticello Developers, Inc., 527 N.E.2d 1111, 1112 (Ind. 1988) (Monticello III).  In so doing the court relied on federal authority for the proposition that the purpose of the double jeopardy clause is "primarily 'directed at the threat of multiple

prosecutions . . . .'" [citation omitted] Id. quoting United States v. Wilson, 420 U.S. 332, 342, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232, 241 (1975).  The court continued:

The underlying idea . . . is that the State with all its resources and power

should not be allowed to make repeated attempts to convict an individual for

an alleged offense, thereby subjecting him to embarrassment, expense and

ordeal and compelling him to live in a continuing state of anxiety and

insecurity, as well as enhancing the possibility that even though innocent he

may be found guilty.

Monticello III, at 1112 quoting Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204 (1957).  The court noted that in the case before it the State would

not have another opportunity to prove its case.  That was so because the existing jury verdict

made a second trial unnecessary.  Id.  The same rationale is applicable here.  By reinstating the jury's verdict of guilty and sentencing Taflinger accordingly, the trial court was not

affording the State another opportunity to prove its case.  The State had already convicted

Taflinger in a jury trial of neglect of a dependent child causing serious bodily injury.  He was

merely resentenced on a jury verdict that had been previously  dismissed.  Because Taflinger

was not threatened with nor subject to a reprosecution there was no double jeopardy bar.

	Judgment affirmed.

SHARPNACK, C.J., and STATON, J., cinconcur.