Harmon v. State

PARKS, Judge,

specially concurring:

Although I concur in the majority opinion, I write separately to more fully discuss appellant’s second assignment of error urging that the trial court erred in allowing the State to amend the information to add an after former conviction charge. Appellant correctly points out that in Price v. State, 598 P.2d 668, 669 (Okl.Cr.1979), this Court held that it is reversible error for the State to amend an information on the day of trial to add an after former conviction charge, where the defendant was not informed of such charge at the preliminary hearing. The rationale behind our ruling in Price was that:

[T]he accused has the fundamental right to presume that he has been fully complained against in the preliminary hearing, and cannot lawfully be held to answer a greater charge entailing more severe penalties ... [T]he State should not be permitted to use the prior conviction charge as a last minute amendment to the information in order to surprise the defense. Even persons charged with being habitual criminals are entitled to due process of law.

The instant case, however, is clearly distinguishable from the situation present in Price. Here, the State’s motion to strike the case from the jury docket was granted and also the trial court remanded the case for a preliminary hearing which was held on March 7, 1985, in order to grant appellant his rights under Price. Thereafter, the trial was held on May 22, 1985, more than two (2) months after the preliminary hearing, and more than four (4) months after the information was actually amended which occurred on January 3, 1985.

With regard to appellant’s fourth assignment of error, I simply note that the State presented sufficient evidence to show that the fingerprints were impressed at the time of the crime and, insofar as the appellant does not allege that any actual tampering occurred, any breaks in the chain of custody went to the weight and credibility of the evidence rather than its admissibility. See Nelson v. State, 687 P.2d 744, 746 (Okl.Cr.1984).

Accordingly, based on the foregoing, I concur in the majority opinion.