Charge dismissed in error negates felony DUI enhancement

The state’s errant dismissal of a misdemeanor drunken-driving charge in 2009 may not be corrected in order to enhance to a felony a defendant’s second such charge within five years, a divided panel of the Indiana Court of Appeals ruled.

The majority reversed a ruling by Grant Superior Judge Warren Haas in which he denied a motion to dismiss a Class D felony charge of operating while intoxicated because the state had filed a nunc pro tunc entry reinstating the 2009 conviction.

Richard Dillon pleaded guilty to misdemeanor operating while intoxicated and marijuana possession charges in 2009. The state later moved to dismiss “Count 1,” mistakenly referring to the drunken-driving charge, when it meant to dismiss the marijuana charge.

In Richard Dillon v. State of Indiana, 27A05-1210-CR-542, Judges Nancy Vaidik and Ezra Friedlander ruled on interlocutory appeal that the state could not correct the mistake by filing the motion correcting its error after Dillon had been arrested a second time on a drunken-driving charge.

“This means that when Dillon allegedly committed the OWI in this case, he did not have a prior conviction within five years because the nunc pro tunc entry had not yet been made," Vaidik wrote in reversing the trial court. “Had the State moved to reinstate Dillon’s inadvertently dismissed OWI … before he allegedly committed the OWI in this case, then the OWI in this case would be subject to the Class D felony enhancement pursuant to Indiana Code section 9-30-5-3. But that is not what happened.”

Judge John Baker dissented, writing that the trial court could not have dismissed “Count 1,” because it was the charge upon which a judgment of conviction already had been entered. “Moreover, even assuming the trial court’s order dismissing Count 1 was not void, we cannot permit criminal defendants to reap the benefits of simple scriveners’ errors,” Baker wrote.