Robb, J.
Following an incident in which Samuel Vande Brake shot his roommate, the State charged him with several battery offenses, criminal recklessness, and attempted murder. Before trial, the State filed a motion to add a firearm enhancement, which the trial court granted. A jury found Vande Brake guilty of aggravated battery, a Level 3 felony; battery by means of a deadly weapon and battery resulting in serious bodily injury, both Level 5 felonies; and criminal recklessness committed with a deadly weapon, a Level 6 felony. The jury found Vande Brake not guilty of attempted murder. After the jury delivered its verdicts, the trial court accepted the verdicts and thanked the jury. The jury was excused and permitted to leave the courtroom. The State then raised the firearm enhancement issue and the trial court responded that the enhancement was never discussed at any time prior to and during the trial. The trial court sua sponte dismissed the enhancement as “a matter of course” and the State did not object.
Following the dismissal of the enhancement, the State filed a motion to correct error requesting that the firearm enhancement be reinstated. The trial court denied the motion. At sentencing, the trial court entered judgment of conviction for aggravated battery, a Level 3 felony, and the remaining counts were vacated. The trial court sentenced Vande Brake to serve nine years in the Indiana Department of Correction (“DOC”), two of which were suspended to probation. The State appeals and raises one issue for our review, namely whether the trial court abused its discretion when it dismissed the firearm enhancement sua sponte. Concluding the trial court abused its discretion, we reverse the dismissal of the firearm enhancement and remand with instructions for the trial court to impanel a new jury to hear the enhancement charge.
The State argues the trial court improperly dismissed the firearm enhancement because it lacked the authority to do so.
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“Ordinarily, a trial court may not sua sponte dismiss an action unless the court lacks jurisdiction or is otherwise authorized by statute or the rules of procedure.” Zavodnik v. Richards, 984 N.E.2d 699, 703 (Ind. Ct. App. 2013) (internal quotation omitted). Pursuant to the Indiana Code, upon motion by the defendant or State, a trial court has the authority to dismiss an indictment or information based on any of the enumerated statutory grounds. Ind. Code §§ 35-34-1-4, 35-34-1-13. In addition, our supreme court has recognized a trial court’s “inherent authority to dismiss criminal charges where the prosecution of such charges would violate a defendant’s constitutional rights.” Davis, 898 N.E.2d at 285.
With respect to a firearm enhancement, “[t]he state may seek, on a page separate from the rest of a charging instrument, to have a person who allegedly committed an offense sentenced to an additional fixed term of imprisonment if the state can show beyond a reasonable doubt that the person knowingly or intentionally used a firearm in the commission of the offense.” Ind. Code § 35- 50-2-11(d). An “offense” is defined as (1) a felony under Indiana Code article 35-42 that resulted in death or serious bodily injury; (2) kidnapping; or (3) criminal confinement as a Level 2 or Level 3 felony. Ind. Code § 35-50-2-11(b). If a person is convicted of an offense in subsection (b) of the statute “in a jury trial, the jury shall reconvene to hear evidence in the enhancement hearing.” Ind. Code § 35-50-2-11(f). And if the State proves the firearm enhancement, the trial court may impose an additional fixed term of imprisonment of between five and twenty years. Ind. Code § 35-50-2-11(g). There is no dispute that the State properly filed the enhancement or that Vande Brake’s conviction is a qualifying offense.
Here, the State contends that once Vande Brake was convicted of the predicate offense, namely aggravated battery, and the State reminded the trial court that the prerequisite for the enhancement phase was met, the trial court was then required to reconvene the jury. The State further asserts that the trial court’s “request for the jury to wait outside for him to confer with counsel was consistent with the court still contemplating the possibility of a second phase.” Brief of Appellant at 10 n.1.
Vande Brake argues that “[w]hile the State would have been entitled to a bifurcated trial and a second phase following the jury’s verdict, it waived that procedure by failing to follow court rules in the preparation and conduct of the trial.” In support of this proposition, Vande Brake relies on the trial court’s Initial Hearing Order issued by the magistrate which, in part, stated that “[a]ll proposed final instructions shall be submitted prior to the commencement of trial but need not be exchanged with opposing counsel until the conclusion of the evidence in this case.” Appellant’s App., Vol. 2 at 27. Vande Brake notes that under Indiana’s Pattern Jury Instructions, “[a] proper second stage of a bifurcated trial would require that such instructions be given.” Br. of Appellee at 10. The State counters that they are not required by rule or statute to submit jury instructions and instead, jury instructions are left to the discretion of the trial court.
We agree that neither the trial court order nor the trial rules required that the State offer instructions on the enhancement phase… Here, the State properly filed a motion to add the firearm enhancement count; the trial court granted the motion and therefore, was clearly aware of the enhancement charge; neither the State nor Vande Brake moved to dismiss the enhancement; the enhancement was pending throughout this case; and the trial court lacked a legitimate basis for dismissing the enhancement sua sponte. We therefore conclude the trial court abused its discretion when it dismissed a legitimate and pending charge.
Conclusion
We conclude that the trial court abused its discretion in dismissing the firearm enhancement. Accordingly, we reverse the dismissal of the firearm enhancement and remand to the trial court with instructions to impanel a new jury to hear the enhancement charge.
Reversed and remanded.
Riley, J., and May, J., concur