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Moss v. State

Court of Appeals of Indiana

March 20, 2014

KEVIN MOSS, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff

APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Michael S. Jensen, Magistrate Judge. Cause No. 49G20-1302-FC-6734.

ATTORNEY FOR APPELLANT: ELLEN M. O'CONNOR, Marion County Public Defender Agency.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; IAN MCLEAN, Deputy Attorney General, Indianapolis, Indiana.

DARDEN, Senior Judge. BAKER, J., and FRIEDLANDER, J., concur.

OPINION

Page 959

DARDEN, Senior Judge.

STATEMENT OF THE CASE

In this discretionary interlocutory appeal, Kevin Moss challenges the trial court's denial of his motion to dismiss. We reverse and remand.

ISSUE

Moss raises one issue, which we restate as: whether the trial court erred in denying his motion to dismiss the enhancement to a class C felony of his charge of class A misdemeanor possession of a handgun without a license due to a prior felony conviction that was later modified to a misdemeanor.

FACTS AND PROCEDURAL HISTORY

In July 2012, Moss and the State signed a formal plea agreement in Lower Cause Number 49F15-1112-FD-86565 (" FD-86565" ). Moss agreed to plead guilty to theft as a class D felony. In return, he was ordered to serve a one-year sentence on home detention and to obey other conditions. The plea agreement also provided that Moss could petition for alternative misdemeanor sentencing (" AMS" ) " upon successful completion of probation without any violations." Appellant's App. p. 58. The formal agreement further permitted the trial court to enter a judgment of conviction that would permit " AMS upfront" or " AMS open to argument." Id. The parties did not select either of those options on the printed form.

Apparently, Moss successfully completed his term of home detention on January 20, 2013. On January 22, 2013, Marion County Community Corrections issued a discharge summary, asserting that he " completed all terms" of probation and was discharged " by operation of law." Id. at 59.

Subsequently, on January 29, 2013, Officer Larry Stargel of the Indianapolis Metropolitan Police Department stopped a car for changing lanes without signaling.[1] Moss was the driver. Stargel asked Moss to produce a driver's license, and Moss presented an Indiana identification card. He admitted to Stargel that his driver's license had been suspended.

Stargel arrested Moss and conducted an inventory search of his car. He found a handgun in the glove box. Moss admitted to Stargel that the gun belonged to him and that his handgun permit had been revoked.

On February 4, 2013, the State commenced this case by charging Moss with carrying a handgun without a license, a class A misdemeanor, Ind. Code § 35-47-2-1 (2012), and driving while suspended, a class A misdemeanor, Ind. Code § 9-24-19-2 (2012). The State also filed a " Part

Page 960

II" to the handgun charge, asserting that the offense was a class C felony due to Moss's felony theft conviction in FD-86565. Appellant's App. p. 19.

On April 4, 2013, Moss filed with the court in FD-86565 a motion for AMS. That court granted Moss's motion and entered a new judgment of conviction for theft as a class A misdemeanor.

Moss subsequently filed with the trial court in the instant case a motion to dismiss the felony enhancement to his handgun charge. He asserted that there was no basis for the underlying felony enhancement because ...


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