Barnes, J.
On November 5, 2010, the State charged Cleary with Class B felony causing death when operating a motor vehicle with a BAC over .15, Class C felony causing death when operating a motor vehicle while intoxicated, and Class A misdemeanor operating a motor vehicle with a BAC over .15. On January 21, 2011, the information was amended to include charges of Class A misdemeanor operating while intoxicated and Class C misdemeanor operating while intoxicated. On August 18, 2011, Cleary was also charged with failure to yield to a recovery vehicle, a Class A infraction, improper lane movement, a Class C infraction, and having more than one driver’s license, a Class C infraction.
. . . The jury found Cleary guilty of the Class A misdemeanor and Class C misdemeanor operating a motor vehicle while intoxicated charges and found him liable on the infractions. The jury was deadlocked on the felony charges. Although the State did not move for judgment on the verdicts, Cleary did. The trial court took the matter under advisement. After a hearing on January 30, 2012, the trial court denied Cleary’s motion for judgment on the verdict and scheduled a new trial. Cleary filed a motion to dismiss based on purported double jeopardy violations, and the trial court denied the motion.
A second jury trial began on August 29, 2012, and on September 11, 2012, the jury found Cleary guilty of all the charged offenses and liable on the infractions. The State moved for judgment on the Class B felony verdict and the infractions. The trial court granted the motion over Cleary’s double jeopardy objection.
. . . .
. . . [H]ad judgments of conviction been entered, retrial would have been barred by Indiana Code Section 35-41-4-3, [footnote omitted] which provides in part:
(a) A prosecution is barred if there was a former prosecution of the defendant based on the same facts and for commission of the same offense and if:
(1) the former prosecution resulted in an acquittal or a conviction of the defendant (A conviction of an included offense constitutes an acquittal of the greater offense, even if the conviction is subsequently set aside.); . . . .
See also Hoover v. State, 918 N.E.2d 724, 736 (Ind. Ct. App. 2009) (“Hoover’s conviction on the lesser-included robbery offense constitutes an acquittal on the greater felony-murder charge, notwithstanding the jury’s express deadlock. The State is therefore barred from retrying Hoover for felony murder.”), trans. denied
We do not agree with Cleary, however, that the trial court was required to enter a judgment of conviction, as opposed to ordering a new trial, upon the return of the jury’s verdict. Indiana Code Section 35-38-1-1(a) explains, “Except as provided in section 1.5 of this chapter, after a verdict, finding, or plea of guilty, if a new trial is not granted, the court shall enter a judgment of conviction.” [Footnote omitted.] Quite simply, because a new trial was granted, the trial court was not required to enter a judgment of conviction.3 [3 To the extent Cleary asserts that the trial court was required to enter a judgment of conviction immediately following the jury’s verdict, our supreme court has stated a “trial court may not withhold judgment but is required to enter judgment of conviction immediately unless a temporary postponement is dictated by good cause shown or the interest of justice so requires.” Debro v. State, 821 N.E.2d 367, 372 (Ind. 2005). Here, on December 14, 2011, at the conclusion of the first trial, the trial court took Cleary’s motion for judgment on the verdict under advisement, scheduled a hearing on the matter for January 30, 2012, and allowed the parties to brief the issue prior to the hearing. At the January hearing, the trial court denied Cleary’s motion and scheduled a new trial. There is no indication that the delay in entering the conviction was for any purpose other than to allow the issue of retrial to be researched. This temporary delay was in the interest of justice and not in violation of Debro.]
In Haddix v. State, 827 N.E.2d 1160, 1165-66 (Ind. Ct. App. 2005), trans. denied, we addressed similar arguments and recognized that they had merit. Ultimately, however, the deciding factor in that case was our supreme court’s denial of Haddix’s petition for writ of mandamus. We concluded that the denial of Haddix’s petition reflected the view that Indiana Code Section 35-38-1-1(a) does not require a trial court to enter a judgment of conviction on a guilty verdict for lesser-included offense if a jury simultaneously volunteers that it could not reach an agreement on the greater offense. Haddix, 827 N.E.2d at 1167. As such, “there is no conviction for the lesser included offense, and the mere return of a guilty verdict on a lesser included offense does not place it within the literal purview of Indiana Code Section 35-41-4-3(a).” Id.
Although Cleary did not file a petition for writ of mandamus, we believe Haddix’s statutory interpretation is sound. Thus, here, where no judgment of conviction was entered on a lesser offense because a new trial was granted, Indiana Code Section 35-41-4-3(a) does not bar retrial of the greater offenses.
PYLE, J., concurs.
CRONE, J., dissents with separate opinion:
Cleary points out that “when the State charges someone with multiple counts of crimes based on the same conduct but at varying felony and misdemeanor levels, [it assumes] the risk that a jury may not find guilt on the more serious counts.” Appellant’s Br. at 11. He argues that if the State wants to avoid findings on a lesser offense, it
should not charge the lesser offenses. It is solely [the State’s] charging decision and the State should not be able to repeatedly prosecute someone when [it gets] verdicts on lesser offenses [it charged] but no verdict on the greater offense. Indiana Code Section 35-41-4-3 clearly says a finding on a lesser offense is an acquittal on the greater offense. The statute could not be clearer. Under Haddix, the State is given a tunnel to escape I.C. § 35-41-4-3 by giving trial courts the option to not enter a conviction as dictated by I.C. § 35-38-1-1. This is particularly offensive because now the State can keep taking a shot at a defendant especially if the State’s case is weak.
Id. I find Cleary’s argument persuasive and believe that allowing the State to “keep taking a shot” at a felony conviction against a defendant in Cleary’s position violates principles of fundamental fairness as well as the principles underlying the constitutional prohibition against double jeopardy.