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Attorney for Appellant

David A. Smith
McIntyre & Smith
Bedford, Indiana

Attorneys for Appellee

Jeffrey A. Modisett
Attorney General of Indiana

Christopher L. LaFuse
Deputy Attorney General
Indianapolis, Indiana



IN THE

INDIANA SUPREME COURT


JAMES E. DUNN,
    Appellant (Defendant below),

    v.

STATE OF INDIANA,
    Appellee (Plaintiff below).

)
)    Supreme Court No.
)    47S04-9801-PC-00007
)
)    Court of Appeals No.
)    47A04-9701-PC-20
)
)



APPEAL FROM THE LAWRENCE SUPERIOR COURT

The Honorable William G. Sleva, Judge

Cause No. 47E01-9208-CF-848



ON PETITION TO TRANSFER



May 6, 1998
SULLIVAN, Justice.

    In accordance with our decision today in State v. Mohler, No. 87S01-9709-PC-497 (Ind. May 6, 1998), we conclude that the new rule of law announced in Bryant v. State, 660 N.E.2d 290 (Ind. 1995), cert. denied, 117 S.Ct. 293 (1996), is not retroactive under Daniels

v. State, 561 N.E.2d 487 (Ind. 1990), and so does not entitle James E. Dunn to post- conviction relief.

    In August, 1992, the State charged James E. Dunn ("Dunn") with possession of more than thirty grams of marijuana, a class D felony.See footnote 1 In September, 1992, the Indiana Department of Revenue issued Dunn a warrant for assessment and collection of a Controlled Substance Excise Tax ("CSET").See footnote 2 Dunn pled guilty in October 1994 to the charge of possession.

    In January, 1996, Dunn filed a petition for post-conviction relief based on this Court's decision in Bryant, 660 N.E.2d 290 (holding that because CSET is punishment, the Double Jeopardy Clause bars drug prosecution after CSET has been assessed), which the post- conviction court denied. Dunn appealed. In a memorandum decision, the Court of Appeals reversed the post-conviction court's denial of relief, holding that the rule announced in Bryant applied retroactively to Dunn. Dunn v. State, No. 47A04-9701-PC-20 (Ind. Ct. App. Oct. 21, 1997).

    Having granted transfer, we vacate the opinion of the Court of Appeals pursuant to

Ind.Appellate Rule 11(B)(3) and affirm the post-conviction court's denial of relief for the reasons set forth in State v. Mohler, No. 87S01-9709-PC-497 (Ind. May 6, 1998), also decided today.

SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.


Footnote:     1 Ind. Code § 35-48-4-11(1) (1988).
Footnote:     2 Ind. Code §§ 6-7-3-1 to -17 (Supp. 1992).

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