May, J.
Jesse Wharton appeals his convictions of level 6 felony operating a vehicle while intoxicated with a prior conviction and level 6 felony operating a vehicle with an alcohol concentration equivalent (ACE) of .08 or more with a prior conviction. [Footnotes omitted.] Wharton asserts his convictions subjected him to double jeopardy because the same act was the basis for both offenses.
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The State’s only argument is that Wharton waived his right to challenge his convictions because he entered into a “plea agreement.” (Br. of Appellee at 3.) In support, the State cites Mapp v. State, which held “Mapp waived his right to challenge his convictions on double jeopardy grounds when he entered his plea agreement.” 770 N.E.2d 332, 334 (Ind. 2002). However, in this case Wharton did not have a “plea agreement.” Wharton pleaded guilty in open court without an agreement that might have brought him some benefit in return. In that circumstance, there is no waiver. See McElroy v. State, 864 N.E.2d 392, 396 (Ind. Ct. App. 2007) (when guilty plea was entered without the benefit of a plea agreement, defendant “may raise a double jeopardy argument”).
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Wharton’s convictions violate the actual evidence test. …
The trial court should have entered only one of the convictions. “When two convictions are found to contravene Indiana double jeopardy principles, . . . one of the convictions must be vacated.” Owens v. State, 742 N.E.2d 538, 544-45 (Ind. Ct. App. 2001) (internal citation omitted), trans. denied. “In the interest of efficient judicial administration, . . . the reviewing court will make this determination[.]” Id. at 545. Therefore, we vacate Wharton’s conviction of level 6 operating a vehicle with an ACE of .08 or more with a prior conviction.
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Affirmed in part, vacated in part, and remanded with instructions.
Crone, J., and Bradford, J., concur.
Jesse Wharton appeals his convictions of level 6 felony operating a vehicle while intoxicated with a prior conviction and level 6 felony operating a vehicle with an alcohol concentration equivalent (ACE) of .08 or more with a prior conviction. [Footnotes omitted.] Wharton asserts his convictions subjected him to double jeopardy because the same act was the basis for both offenses.
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The State’s only argument is that Wharton waived his right to challenge his convictions because he entered into a “plea agreement.” (Br. of Appellee at 3.) In support, the State cites Mapp v. State, which held “Mapp waived his right to challenge his convictions on double jeopardy grounds when he entered his plea agreement.” 770 N.E.2d 332, 334 (Ind. 2002). However, in this case Wharton did not have a “plea agreement.” Wharton pleaded guilty in open court without an agreement that might have brought him some benefit in return. In that circumstance, there is no waiver. See McElroy v. State, 864 N.E.2d 392, 396 (Ind. Ct. App. 2007) (when guilty plea was entered without the benefit of a plea agreement, defendant “may raise a double jeopardy argument”).
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Wharton’s convictions violate the actual evidence test. …
The trial court should have entered only one of the convictions. “When two convictions are found to contravene Indiana double jeopardy principles, . . . one of the convictions must be vacated.” Owens v. State, 742 N.E.2d 538, 544-45 (Ind. Ct. App. 2001) (internal citation omitted), trans. denied. “In the interest of efficient judicial administration, . . . the reviewing court will make this determination[.]” Id. at 545. Therefore, we vacate Wharton’s conviction of level 6 operating a vehicle with an ACE of .08 or more with a prior conviction.
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Affirmed in part, vacated in part, and remanded with instructions.
Crone, J., and Bradford, J., concur.