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Attorney for Appellant

Garrett V. Conover
Landau, Omahana & Kopka
Merrillville, Indiana
Attorneys for Appellee

Jeffrey A. Modisett
Attorney General of Indiana

Christopher L. LaFuse
Deputy Attorney General
Indianapolis, Indiana



IN THE

INDIANA SUPREME COURT


MARTIN PETERSON,
    Appellant (Defendant below),

    v.

STATE OF INDIANA,
    Appellee (Plaintiff below).

)
)    Supreme Court No.
)    64S05-9802-PC-00102
)
)    Court of Appeals No.
)    64A05-9703-PC-102
)
)
)



APPEAL FROM THE PORTER SUPERIOR COURT

The Honorable Roger V. Bradford, Judge

Cause No. 64D01-9311-CF-161



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 Martin Peterson to post- conviction relief.

    On two occasions in June, 1993, Martin Peterson ("Peterson") sold cocaine to an undercover police officer. On August 25, 1993, the Indiana Department of Revenue issued Peterson a warrant for payment of a Controlled Substance Excise Tax ("CSET"),See footnote 1 which was reduced to a money judgment on October 4, 1993. On November 8, 1993, the State charged Peterson with two counts of delivering cocaine.See footnote 2 Peterson pled guilty to one charge on October 15, 1994, and paid the CSET on March 6, 1995.

    On March 6, 1996, Peterson filed an amended petition for post-conviction relief based on this Court's decision in Bryant v. State, 660 N.E.2d 290 (holding that because CSET is punishment, the Double Jeopardy Clause bars criminal prosecution for the underlying drug offense after CSET has been assessed). The post-conviction court denied Peterson's petition for relief. Peterson appealed.

    The Court of Appeals retroactively applied the Bryant holding and reversed the post- conviction court's denial of relief. Peterson v. State, 689 N.E.2d 1290 (Ind. Ct. App. 1998).


    Having granted transfer, we now vacate the Court of Appeals opinion 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 §§ 6-7-3-1 to -17 (Supp. 1992).
Footnote:     2 Ind. Code § 35-48-4-1 (1988 & Supp. 1990).

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