Williams v. State , 1982 Ind. LEXIS 761 ( 1982 )

DeBRULER, Justice,

concurring in result.

The Court considers whether the accused may contest prior convictions in defending against a habitual criminal count, in the course of considering whether a continuance was properly denied. I agree with the general proposition that prior convictions are not subject to collateral attack in recidivist proceedings such as these; however, at the same time it must be recognized that there are rare instances in which this rule must give way. Burgett v. State of Texas, (1967) 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319; McCormick v. State, (1971) 256 Ind. 78, 267 N.E.2d 78. Furthermore, very recently in Barnett v. State, (1981) Ind., 429 N.E.2d 625, we held that it was error for a trial court to deny a continuance requested in response to an amendment of the charge to include a recidivist count made on the first morning of trial. We went on to conclude that from the post-trial appellate perspective, the error did not prejudice the substantial rights of the accused. And I believe the same is true here. Appellant admits that he had partial discovery on the habitual offender matter before trial, and while contending that he did not get a chance to depose two witnesses, he does not contend that he did not have access to them. Furthermore, while contending that subpoenas issued to obtain transcripts of guilty plea proceedings in 1974—1975 cases were not honored, he does not assert that he had no access at all to them or to official documents which reflected prior convictions.