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Indiana Code - Criminal Law and Procedure - Title 35, Section 35-50-2-8

Legal Research Home > Indiana Law > Criminal Law and Procedure > Indiana Code - Criminal Law and Procedure - Title 35, Section 35-50-2-8

Habitual offenders

Sec. 8. (a) Except as otherwise provided in this section, the state
may seek to have a person sentenced as a habitual offender for any
felony by alleging, on a page separate from the rest of the charging
instrument, that the person has accumulated two (2) prior unrelated
felony convictions.
(b) The state may not seek to have a person sentenced as a
habitual offender for a felony offense under this section if:
(1) the offense is a misdemeanor that is enhanced to a felony in
the same proceeding as the habitual offender proceeding solely
because the person had a prior unrelated conviction;
(2) the offense is an offense under IC 9-30-10-16 or
IC 9-30-10-17; or
(3) all of the following apply:
(A) The offense is an offense under IC 16-42-19 or
IC 35-48-4.
(B) The offense is not listed in section 2(b)(4) of this
chapter.
(C) The total number of unrelated convictions that the
person has for:
(i) dealing in or selling a legend drug under
IC 16-42-19-27;
(ii) dealing in cocaine or a narcotic drug (IC 35-48-4-1);
(iii) dealing in a schedule I, II, III controlled substance (IC
35-48-4-2);
(iv) dealing in a schedule IV controlled substance (IC
35-48-4-3); and
(v) dealing in a schedule V controlled substance (IC
35-48-4-4);
does not exceed one (1).
(c) A person has accumulated two (2) prior unrelated felony
convictions for purposes of this section only if:
(1) the second prior unrelated felony conviction was committed
after sentencing for the first prior unrelated felony conviction;
and
(2) the offense for which the state seeks to have the person
sentenced as a habitual offender was committed after
sentencing for the second prior unrelated felony conviction.
(d) A conviction does not count for purposes of this section as a
prior unrelated felony conviction if:
(1) the conviction has been set aside;
(2) the conviction is one for which the person has been
pardoned; or
(3) all of the following apply:
(A) The offense is an offense under IC 16-42-19 or
IC 35-48-4.
(B) The offense is not listed in section 2(b)(4) of this
chapter.
(C) The total number of unrelated convictions that the
person has for:
(i) dealing in or selling a legend drug under
IC 16-42-19-27;
(ii) dealing in cocaine or a narcotic drug (IC 35-48-4-1);
(iii) dealing in a schedule I, II, III controlled substance (IC
35-48-4-2);
(iv) dealing in a schedule IV controlled substance (IC
35-48-4-3); and
(v) dealing in a schedule V controlled substance (IC
35-48-4-4);
does not exceed one (1).

(e) The requirements in subsection (b) do not apply to a prior
unrelated felony conviction that is used to support a sentence as a
habitual offender. A prior unrelated felony conviction may be used
under this section to support a sentence as a habitual offender even
if the sentence for the prior unrelated offense was enhanced for any
reason, including an enhancement because the person had been
convicted of another offense. However, a prior unrelated felony
conviction under IC 9-30-10-16, IC 9-30-10-17, IC 9-12-3-1
(repealed), or IC 9-12-3-2 (repealed) may not be used to support a
sentence as a habitual offender.
(f) If the person was convicted of the felony in a jury trial, the jury
shall reconvene for the sentencing hearing. If the trial was to the
court or the judgment was entered on a guilty plea, the court alone
shall conduct the sentencing hearing under IC 35-38-1-3.
(g) A person is a habitual offender if the jury (if the hearing is by
jury) or the court (if the hearing is to the court alone) finds that the
state has proved beyond a reasonable doubt that the person had
accumulated two (2) prior unrelated felony convictions.
(h) The court shall sentence a person found to be a habitual
offender to an additional fixed term that is not less than the advisory
sentence for the underlying offense nor more than three (3) times the
advisory sentence for the underlying offense. However, the
additional sentence may not exceed thirty (30) years.

As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977,
P.L.340, SEC.121; Acts 1980, P.L.210, SEC.1; P.L.335-1983, SEC.1;
P.L.328-1985, SEC.2; P.L.1-1990, SEC.353; P.L.164-1993, SEC.13;
P.L.140-1994, SEC.14; P.L.305-1995, SEC.1; P.L.166-2001, SEC.3;
P.L.291-2001, SEC.226; P.L.71-2005, SEC.11.

Last modified: May 25, 2006