May, J.
Justin R. Hogg appeals the trial court’s denial of Hogg’s motion to dismiss the “five additional criminal charges” filed by the State after Hogg’s conviction of Level 6 felony theft1 was reversed on appeal due a material variance between the charging information and the evidence presented at trial. (Appellant’s Br. at 4) (emphasis in original). Hogg argues the five new charges represent impermissible prosecutorial vindictiveness, and we agree. We reverse the trial court’s denial of Hogg’s motion to dismiss the five additional charges and remand for further proceedings not inconsistent with this opinion.
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Nevertheless, the parties disagree about the charges for which Hogg may be tried at a second trial. We begin by pointing back to language from Carpenter: “double jeopardy does not bar a retrial on the same charge.” 786 N.E.2d at 705 (emphasis added). As our prior opinion made clear, the original charging instrument charged Hogg with “a single criminal act, which act could have resulted in a conviction for one, but only one, count of check deception, theft, or counterfeiting.” Hogg, 21A-CR-2251, memo. op. at *6. Because we held those are the charges for which Hogg stood trial in his first trial, see id., the State was entitled to try Hogg a second time for check deception, theft, and counterfeiting based on Hogg’s passing of a fake check for $984.79 at Dutch Mill in the early morning hours of March 7, 2020. See, e.g., Carpenter, 786 N.E.2d at 705 (holding Carpenter could be retried following reversal of his convictions for improper admission of evidence because the evidence presented at his first trial was sufficient to support his convictions).
Rather than retry Hogg based on the original charging information, on June 13, 2022, the State filed a new seven-count charging information that included five new Level 6 felony charges based on criminal behavior that occurred on March 5, 2020, and/or in cooperation with Myer or Slavens. Hogg argues this filing of new charges after his successful appeal demonstrates prosecutorial vindictiveness that violates his right to due process.
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“[U]nless there is new evidence or information discovered to warrant additional charges, the potential for prosecutorial vindictiveness is too great for courts to allow the State to bring additional charges against a defendant” after that defendant exercises his right to a fair trial by moving for a mistrial. Warner v. State, 773 N.E.2d 239, 243 (Ind. 2002). Moreover, the rationale for protecting the right to a fair trial, which supports the presumption of prosecutorial vindictiveness, “is even more compelling in the case of a successful appeal than in the case of a successful motion for a mistrial” because, in Indiana, convicted persons have a constitutional right to an appeal. Owens v. State, 822 N.E.2d 1075, 1077 (Ind. Ct. App. 2005).
The State argues it is permitted to bring the five additional charges because “the State is not alleging any new criminal acts nor seeking more severe penalties.” (Appellee’s Br. at 14.) We find the State’s argument disingenuous.
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The State may not obtain the one conviction it seeks by charging additional crimes that the State could have charged prior to the first trial. See Warner v. State, 773 N.E.2d 239, 243-44 (Ind. 2002) (“Having known of the attempted robbery evidence it used at the second trial all along, notions of fundamental fairness dictate that it was improper for the State to add the new counts [of felony murder and attempted robbery] after Warner exercised his right to a fair trial [on a charge of murder].”). The trial court abused its discretion when it denied Hogg’s motion to dismiss the five new charges filed against Hogg after he exercised his constitutional right to an appeal. See, e.g., id. at 244 (holding trial court erred by allowing the State to amend the charges to allege two additional crimes after defendant exercised his right to a fair trial).
Following reversal for improper admission of evidence, Hogg may be retried for the same charges, but the State may not add any additional charges based on the same evidence. The trial court therefore abused its discretion by denying Hogg’s motion to dismiss the five new charges the State filed on June 13, 2022. We reverse the trial court’s denial of that motion and remand for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Altice, C.J., and Foley, J., concur.