FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JEFFREY D. STONEBRAKER GREGORY F. ZOELLER

Clark County Chief Public Defender Attorney General of Indiana 

Jeffersonville, Indiana 47130

KATHERINE MODESITT COOPER

Deputy Attorney General 

Indianapolis, Indiana 

IN THE

COURT OF APPEALS OF INDIANA

GEORGE A. NUNLEY, )

)

Appellant-Defendant, )

)

vs. ) No. 10A04-1212-CR-630

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE CLARK CIRCUIT COURT

The Honorable Daniel E. Moore, Judge

Cause No. 10C01-1005-FC-082

December 18, 2013

OPINION ON REHEARING- FOR PUBLICATION

ROBB, Chief Judge
2

The State has petitioned this court for rehearing of our decision dated October 2, 2013.

In our opinion we held, in relevant part, that the trial court erred in allowing the State to 

amend the habitual offender allegation after the jury was empaneled. Nunley v. State, 995 

N.E.2d 718, 726 (Ind. Ct. App. 2013). We concluded that the amendment was made after the 

commencement of trial and that it prejudiced Nunley’s substantial rights and therefore was 

not allowed under any subsection of Indiana Code section 35-34-1-5, which deals with 

amendments to an information. Accordingly, we reversed the habitual offender enhancement 

to Nunley’s sentence. Id. at 725. We write now to clarify our decision, and we affirm our 

opinion in all respects.

The State argues that the proper remedy for a late-filed amendment would have been 

for us to remand to the trial court for proceedings on an habitual offender sentence 

enhancement, rather than the reversal that we ordered. For this contention, the State cites to 

Jaramillo v. State, 823 N.E.2d 1187 (Ind. 2005), cert. denied, 546 U.S. 1030 (2005). In 

Jaramillo, our supreme court held that “the Double Jeopardy Clause does not prevent the 

State from re-prosecuting a habitual offender enhancement after conviction therefore has 

been reversed on appeal for insufficient evidence.” Id. at 1191. The holding in Jaramillo

was itself based on a similar holding by the United States Supreme Court. Monge v. 

California, 524 U.S. 721, 734 (1998) (holding that the double jeopardy clause does not apply 

to noncapital sentencing proceedings; the case involved a “three-strikes” sentencing 

enhancement where the State had failed to provide sufficient evidence to prove one of the 

predicate offenses).
3

The difference between these cases and Nunley’s is that those enhancements were 

overturned for insufficient evidence, whereas here, the State failed to timely and properly 

allege the habitual offender status. While Monge’s holding was somewhat broad regarding 

noncapital sentencing proceedings, it did not address the issue on point here, nor did 

Jaramillo.

We find no cases in which we or our supreme court has determined that an habitual 

offender allegation was wrongly amended under Indiana Code section 35-34-1-5 and then 

remanded for further proceedings on the allegation rather than reversing. The closest match 

is White v. State, 963 N.E.2d 511, 518 (Ind. 2012), in which our supreme court addressed a 

belated habitual offender allegation amendment but concluded that because the defendant did 

not object to the amendment or request a continuance, the issue was waived on appeal; the 

court then addressed the sufficiency of the evidence supporting the allegation.

Our concern with extending Jaramillo to our current case is that it would conflict with 

the language and purpose of Indiana Code section 35-34-1-5. The issue in this case regards 

the timing of an amendment to an allegation rather than the evidence supporting that 

allegation. Thus, this case is distinct from Jaramillo. Therefore, even if remanding for 

further proceedings on the habitual offender allegation would not violate federal double 

jeopardy under Monge, we believe it would be contrary to the relevant state statute. Because 

the State’s original habitual offender allegation failed to list appropriate predicate offenses, 

there would be nothing to address on remand without an amendment to the allegation. Were 

we to remand now and allow the State to amend its original allegation, Indiana Code section 
4

35-4-1-5 and its timing requirements would be rendered pointless. We therefore affirm our 

original decision to reverse, and affirm that opinion in all respects.

KIRSCH, J., concurs. 

RILEY, J., would deny the Petition for Rehearing.