Amendment of charge; procedures; limitations
Sec. 5. (a) An indictment or information which charges the
commission of an offense may not be dismissed but may be amended
on motion by the prosecuting attorney at any time because of any
immaterial defect, including:
(1) any miswriting, misspelling, or grammatical error;
(2) any misjoinder of parties defendant or offenses charged;
(3) the presence of any unnecessary repugnant allegation;
(4) the failure to negate any exception, excuse, or provision
contained in the statute defining the offense;
(5) the use of alternative or disjunctive allegations as to the
acts, means, intents, or results charged;
(6) any mistake in the name of the court or county in the title of
the action, or the statutory provision alleged to have been
violated;
(7) the failure to state the time or place at which the offense was
committed where the time or place is not of the essence of the
offense;
(8) the failure to state an amount of value or price of any matter
where that value or price is not of the essence of the offense; or
(9) any other defect which does not prejudice the substantial
rights of the defendant.
(b) The indictment or information may be amended in matters of
substance or form, and the names of material witnesses may be
added, by the prosecuting attorney, upon giving written notice to the
defendant, at any time up to:
(1) thirty (30) days if the defendant is charged with a felony; or
(2) fifteen (15) days if the defendant is charged only with one
(1) or more misdemeanors;
before the omnibus date. When the information or indictment is
amended, it shall be signed by the prosecuting attorney.
(c) Upon motion of the prosecuting attorney, the court may, at any
time before, during, or after the trial, permit an amendment to the
indictment or information in respect to any defect, imperfection, or
omission in form which does not prejudice the substantial rights of
the defendant.
(d) Before amendment of any indictment or information other than
amendment as provided in subsection (b) of this section, the court
shall give all parties adequate notice of the intended amendment and
an opportunity to be heard. Upon permitting such amendment, the
court shall, upon motion by the defendant, order any continuance of
the proceedings which may be necessary to accord the defendant
adequate opportunity to prepare his defense.
(e) An amendment of an indictment or information to include a
habitual offender charge under IC 35-50-2-8 must be made not later
than ten (10) days after the omnibus date. However, upon a showing
of good cause, the court may permit the filing of a habitual offender
charge at any time before the commencement of the trial.
As added by Acts 1981, P.L.298, SEC.3. Amended by Acts 1982,
P.L.204, SEC.21; P.L.320-1983, SEC.13; P.L.164-1993, SEC.7.
Last modified: May 24, 2006