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ATTORNEY FOR APPELLANT David C. Kolbe Warsaw, Indiana

ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana Arturo Rodriguez II Deputy Attorney General Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 43S05-0910-CR-496 CLINT BELDON,

FILED
May 05 2010, 9:00 am
of the supreme court, court of appeals and tax court

CLERK

Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ Appeal from the Kosciusko Superior Court, No. 43D03-0707-FD-94 The Honorable Joe V. Sutton, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 43A05-0805-CR-302 _________________________________ May 5, 2010 Sullivan, Justice. The trial court used the same prior conviction to both elevate Clint Beldons operating while intoxicated charge from a misdemeanor to a Class D felony and as a predicate offense for a habitual substance offender enhancement. While the general rule is that such "double enhanc ements" are not permitted absent explicit legislative direction, two of our decisions have held that direction exists in the circumstances of this case.

Background

In 2007, the State charged Beldon with: Count I, operating a motor vehicle with at least eight-hundredths (0.08) gram of alcohol but less than fifteen-hundredths (0.15) gram of alcohol per 100 milliliters of blood or 210 liters of breath, a Class C misdemeanor;1 Count II, operating a motor vehicle while intoxicated in a manner that endangers a person, a Class A misdemeanor;2 Count III, operating a motor vehicle while intoxicated, a Class C misdemeanor; 3 and Count IV, operating a motor vehicle with an alcohol concentration equivalent to at least fifteen-hundredths (0.15) gram of alcohol per one hundred milliliters of his blood, a Class A misdemeanor.4

As noted in the footnotes, these misdemeanors constituted violations of Indiana Code sections 9-30-5-1 and 9-30-5-2. Indiana Code section 9-30-5-3 provides that "a person who violates [I.C.

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