How does your office and district clerk handle reindictments? Do you reindict to add enhancements? Do you use 28.10/11 to amend indictments in lieu of reindicting?
Our district clerk has been giving every reindictment a new number and want us to dismiss the "old" case. There also seems to be some difficulty in making sure all the motions etc from the "old" case are transferred into the "new" file. Lastly, our Judge, in an attempt to resolve this difficulty, has suggested that we amend the indictment for enhancements or form/substance changes. He says he'll take up objections to the indictment at PT. New offenses, of course, could still go through the GJ.
If we accidentally leave an enhancement off the indicment, we simply file a State's Notice of Intent to Enhance and serve the notice on defense counsel.
In my old county, a reindictment meant a new cause number and a new file. That would sometimes be troublesome when papers made it into the wrong file.
People used to prefer reindicting because of the old case law about interlineating the indictment for amendments, but there were time limits due to grand jury terms and grand jury dockets, so sometimes the method--reindictment or amendment--was dictated by the calendar rather than case law.
I think some states and maybe the feds use what are called superseding indictments, but I don't know whether that is a new cause number or not for our lingo.
I wonder if some counties don't put the same cause number on a reindictment, because I don't think cause-numbering is really controlled by our code. Of course, I don't think the word reindictment is in there, either.
A re-indictment gets a new cause number. Several reasons: the new indictment may have been returned by a different grand jury, the clerk has to file an annual report which includes how many indictments were returned in a given period, etc.
I file a motion to amend to add enhancements since the standard punishment charge stays the same("as alleged in the indictment").
I think a law change to allow superseding indictments would be a good thing.
When we adopted a direct file system, we deliberately looked for ways to avoid the duplication of files and administrative work. So, even with re-indictments, we keep the documents in the same file and cause number. We identify the new indictment as a re-indictment.
While Ken makes good points about the need for collection of statistics, that does not mean the paperwork has to be kept in separate folders or assigned new cause numbers. That certainly is one way to do it, but the Code of Criminal Procedure does not require it.
JB, has anyone ever claimed that this violated their rights somehow?
No. They have a proper indictment issued by a grand jury. How would they complain about what kind of folder it is placed into or what number is assigned to it for clerical purposes?\
Frankly, everyone seems to appreciate the convenience of maintaining all the records in a single place. The process of "incorporating" previously filed motions from another cause number, dismissing a prior indictment, re-approving a bond and other administrative acts has always seemed a needless bit of beaurocracy.
I can't find a Notice of intent to enhance in my forms file. Will someone please help me out and email me one? e.hernandez[at]wallercounty[dot]us thanks!
In the 38th judicial district we file superseding indictments. We keep the same cause number.
Mr. Hernandez, I sent you a form via email. Let me know if you don't receive it.
I sent a form as well.
I've seen an issue with the "notice of enhancement" technique. The practice has always been that defendants are arraigned on the enhancements, yet several times I have encountered cases where that didn't happen because we had used a "notice" rather than including the enhancements in an indictment. Probably I can beat that in an appeal, but I am cautious and have been encouraging folks to reindict with their enhancements rather than use a "notice."
You might look at this unpublished opinion from the 3rd court of appeals - No. 03-10-00347-CR
The defendant was indicted on 3rd degree level of theft with 2 sequential regular prison convictions for enhancement as habitual offender. The jury found guilty of lesser state jail level. At that time our office gave immediate notice to use 2 state jail convictions for enhancement. This was a big issue on appeal. Conviction and sentencing were affirmed. PDR was refused on this case. The form of notice does not seem to matter so long as it is given before you start punishment and can prove notice was actually given.
Thank you all for the forms - I did receive them. And thank you for the caselaw. I'll keep them in my trial notebook for when the objections start to fly.
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