Linder v. State , 1992 Ind. App. LEXIS 479 ( 1992 )

GARRARD, Judge.

Linder was convicted of voluntary manslaughter and arson as a Class A felony. His convictions were affirmed by the supreme court on direct appeal. Linder v. State (1985) Ind., 485 N.E.2d 73. He now appeals from the denial of his petition for post-conviction relief.

Linder contends the court committed fundamental error at his trial by permitting him to be convicted of arson as a Class A felony (arson resulting in bodily injury to another person) when he had only been charged with the Class B version of the offense. He contends the conviction denied him due process.

The state responds that a defendant may waive his rights to due process and that Linder must be deemed to have done so because he invited the error by requesting that the jury be instructed on arson as both a Class A and a Class B felony.

We agree with the state that Linder may not be heard to contend that he was denied due process when he was the party that requested the jury be instructed on the availability of Class A arson as an offense for them to consider. Nevertheless, we are constrained to find that the court committed fundamental error when it sentenced Linder for both manslaughter and Class A arson.

Our supreme court has repeatedly held that it is a violation of the guarantee against double jeopardy and fundamental error for the court to sentence on both a homicide offense and upon the class enhancement of a separate felony where the class enhancement depends upon the same injury that occurred in the homicide. See Hansford v. State (1986) Ind., 490 N.E.2d 1083, 1089; Tawney v. State (1982) Ind., 439 N.E.2d 582.

This rule applies in Linder's case because both the manslaughter and the class A enhancement of the arson were based upon the death of Cynthia Duvall.

We therefore remand with instructions to vacate the conviction for arson as a Class A felony, to enter his conviction for arson as a Class B felony and to resentence Linder accordingly.

SULLIVAN, J., concurs. CHEZEM, J., dissents and files separate opinion.