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Published by the Indiana Office of Court Services

Moss v. State, No. 49A02-1307-CR-618, __ N.E.3d __ (Ind. Ct. App., Mar. 20, 2014).

March 20, 2014 Filed Under: Criminal Tagged With: Appeals, C. Darden

Darden, Senior Judge
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 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 [alternative misdemeanor sentencing]. 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 the predicate felony had been modified to a misdemeanor.
. . . .
Moss argues that the C felony enhancement must be dismissed because he no longer has an underlying predicate felony conviction in FD-86565. The State asserts that the dispositive question is whether Moss had a prior felony conviction on the day he is alleged to have committed the current crimes. Moss’s prior felony theft conviction was still on his record on the day he was arrested, so the State concludes that the C felony enhancement need not be dismissed.
. . . .
. . . Moss’s prior class D felony conviction no longer exists and has effectively been vacated . . . .
Moss has carried his burden of proving error, and the C felony enhancement must be dismissed for want of a predicate felony conviction.
BAKER, J., and FRIEDLANDER, J., concur.

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