Gerald Dale Mccormick v. State Indiana

ARTERBURN, C.J. ON PETITION FOR REHEARING - The Defendant has filed a Petition for Rehearing. He contended in his appeal for post-conviction relief that he was receiving double punishment by reason of having been convicted for Rape (Count I) and Assault and Battery with Intent to Gratify Sexual Desires (Count II). He had been sentenced separately on both charges. In our original opinion we agreed that the Defendant could not be sentenced on a lesser included offense after being adJudged guilty and being sentenced on the greater offense. We ordered the judgment and sentencing on the lesser included offense of Assault and Battery with Intent to Gratify Sexual Desires to be vacated, leaving standing the conviction on Rape. Defendant now contends that his conviction and sentencing under the habitual Criminal Act was error since Count II charging him with two prior felonies as required by the Habitual Criminal Act also recited the charge of Assault and Battery With Intent to Gratify Sexual Desires. The specific argument of the Petition for Rehearing is that since the Assault and Battery With Intent To Gratify Sexual Desires charge has been vacated, the Habitual Criminal sentence must also be vacated because that charge was coupled with the vacated Assault and Battery charge and not the Rape charge of which Appellant still stands convicted. With this contention of the Defendant we do not agree. The Habitual Criminal statute does not work in terms of prior convictions being coupled with certain new charges.