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Keywords

trialobjectionappellant

statutetrialmotionfelonyappellantlife imprisonment

Related Cases

Bobbitt v. State, 266 Ind. 164, 361 N.E.2d 1193

Facts

On August 31, 1973, two men entered Gerard's Pharmacy in South Bend, Indiana, where one man, armed with a gun, assaulted a customer while money was taken from the cash register. Witnesses identified Bobbitt as one of the robbers, and he was arrested shortly after the crime with evidence linking him to the robbery, including a nylon mask and cash. Bobbitt was convicted on February 26, 1975, and sentenced to consecutive terms for armed robbery and infliction of injury.

The Appellant, Grady Thomas Bobbitt, was convicted on February 26, 1975, of commission of a felony (robbery) while armed and infliction of injury during the commission of a robbery. The Appellant was sentenced by his jury to imprisonment for eighteen years for the armed robbery conviction. Ind.Code s 35—12—1—1 (Burns 1975). Pursuant to statute, the Appellant was sentenced to life imprisonment for the infliction of injury conviction. Ind.Code s 35—13—4—6 (Burns 1975). Judgment by the trial court on August 19, 1975, made these sentences consecutive.

Issue

Whether the trial court erred in sentencing the Appellant on both armed robbery and infliction of injury during the commission of a robbery.

Whether the trial court erred in denying a defense motion for a bifurcated trial of the armed robbery charge, divided into guilt-determination and sentencing phases.

Rule

A charge of armed robbery is embodied in the infliction of injury charge, and conviction upon the latter charge acts as a bar to subsequent prosecution for armed robbery.

A charge of armed robbery is embodied in the infliction of injury charge and that conviction upon the latter charge would act as a bar to subsequent prosecution for armed robbery.

Analysis

The court determined that the trial court erred in imposing a sentence for both convictions, as the armed robbery charge was included in the infliction of injury charge. The court referenced a previous case that recognized this as fundamental error, which can be reviewed even without a proper objection at trial. Consequently, the armed robbery sentence must be vacated, rendering the other sentencing issues moot.

The Appellant's contention that the trial court erred in sentencing the Appellant on both armed robbery and inflicting injury in the course of a robbery is correct. In Swininger v. State, (1976) Ind., 352 N.E.2d 473, this court held that a charge of armed robbery is embodied in the infliction of injury charge and that conviction upon the latter charge would act as a bar to subsequent prosecution for armed robbery.

Conclusion

The court affirmed the trial court's judgment but remanded the case with instructions to vacate the sentence imposed upon the Appellant's armed robbery conviction.

This case is remanded to the trial court with instructions to vacate the sentence imposed upon the Appellant's armed robbery conviction. The judgment of the trial court is otherwise affirmed.

Who won?

The State prevailed in the case as the court upheld the conviction for infliction of injury but vacated the sentence for armed robbery, recognizing the error in sentencing on both counts.

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