Sec. 5. (a) An indictment or information which
charges the commission of an offense may not be dismissed but may be
amended on motion by the prosecuting attorney at any time because of
any immaterial defect, including:
(1) any miswriting, misspelling, or grammatical error;
(2) any misjoinder of parties defendant or offenses charged;
(3) the presence of any unnecessary repugnant allegation;
(4) the failure to negate any exception, excuse, or provision
contained in the statute defining the offense;
(5) the use of alternative or disjunctive allegations as to the acts,
means, intents, or results charged;
(6) any mistake in the name of the court or county in the title of
the action, or the statutory provision alleged to have been
violated;
(7) the failure to state the time or place at which the offense was
committed where the time or place is not of the essence of the
offense;
(8) the failure to state an amount of value or price of any matter
where that value or price is not of the essence of the offense; or
(9) any other defect which does not prejudice the substantial
rights of the defendant.
(b) The indictment or information may be amended in matters of
substance and the names of material witnesses may be added, by the
prosecuting attorney, upon giving written notice to the defendant at any
time:
(1) up to:
(A) thirty (30) days if the defendant is charged with a felony; or
(B) fifteen (15) days if the defendant is charged only with one
(1) or more misdemeanors;
before the omnibus date; or
(2) before the commencement of trial;
if the amendment does not prejudice the substantial rights of the
defendant. When the information or indictment is amended, it shall be
signed by the prosecuting attorney or a deputy prosecuting attorney.
(c) Upon motion of the prosecuting attorney, the court may, at any
time before, during, or after the trial, permit an amendment to the
indictment or information in respect to any defect, imperfection, or
omission in form which does not prejudice the substantial rights of the
defendant.
(d) Before amendment of any indictment or information other than
amendment as provided in subsection (b), the court shall give all
parties adequate notice of the intended amendment and an opportunity
to be heard. Upon permitting such amendment, the court shall, upon
motion by the defendant, order any continuance of the proceedings
which may be necessary to accord the defendant adequate opportunity
to prepare the defendant's defense.
(e) An amendment of an indictment or information to include a
habitual offender charge under IC 35-50-2-8 must be made at least
thirty (30) days before the commencement of trial. However, upon a
showing of good cause, the court may permit the filing of a habitual
offender charge at any time before the commencement of the trial if the
amendment does not prejudice the substantial rights of the defendant.
If the court permits the filing of a habitual offender charge less than
thirty (30) days before the commencement of trial, the court shall grant
a continuance at the request of the:
(1) state, for good cause shown; or
(2) defendant, for any reason.
As added by Acts 1981, P.L.298, SEC.3. Amended by Acts
1982, P.L.204, SEC.21; P.L.320-1983, SEC.13; P.L.164-1993, SEC.7;
P.L.178-2007, SEC.1; P.L.24-2013, SEC.1; P.L.158-2013,
SEC.389.
Notes of Decisions
Cited in
226
cases (
19 in the last 5 years), 1984–2026 · leading case:
Ramon v. State, 888 N.E.2d 244 (Ind. Ct. App. 2008).
Ramon v. State, 888 N.E.2d 244 (Ind. Ct. App. 2008).
· cites it 78× “The State pointed out that on May 8, 2007, the Indiana General Assembly amended Indiana Code Ann. § 35-34-1-5 (West, PREMISE through 2007 1st Regular Sess.”
Brown v. State, 912 N.E.2d 881 (Ind. Ct. App. 2009).
· cites it 22× “Amendments to a charging information are governed by Ind.Code Ann. § 35-34-1-5 (West, PREMISE through *888 Public Laws approved and effective through 4/20/2009).”
Gibbs v. State, 952 N.E.2d 214 (Ind. Ct. App. 2011).
· cites it 26× “In Fajardo and Fuller, both the Indiana Supreme Court and this court confronted factual situations in which a trial court’s allowance of a late amendment was not authorized by statute.”
Gomez v. State, 907 N.E.2d 607 (Ind. Ct. App. 2009).
· cites it 20× “He specifically contends that the amendment of the charging information was not timely filed because, under the version of Indiana Code section 35-34-1-5 in effect at the time Gomez committed the instant offense, the State could only make a substantive amendment to the charging…”
Hurst v. State, 890 N.E.2d 88 (Ind. Ct. App. 2008).
· cites it 18× “In doing so, the court noted that effective May 8, 2007, the Indiana General Assembly amended Ind.Code Ann. § 35-34-1-5 (West, PREMISE though 2007 1st Regular Sess.”
William E. Mays v. State of Indiana, 120 N.E.3d 1070 (Ind. Ct. App. 2019).
· cites it 26× “2008) ], this court held that the application of the revised Indiana Code section 35-34-1-5 did not violate the ex post facto provisions of the Indiana and United States Constitutions because the statutory amendment was procedural.”
Carltez Taylor v. State of Indiana, 86 N.E.3d 157 (Ind. 2017).
· cites it 8× “Taylor’s second contention is that the State violated Indiana Code section 35-34-1-5 (2014) by amending the conspiracy to commit murder charge just two days before trial.”
Wilson v. State, 931 N.E.2d 914 (Ind. Ct. App. 2010).
· cites it 12× “However, on January 16, 2007, the Indiana Supreme Court decided Fajardo, in which it held that the applicable version of Indiana Code section 35-34-1-5 required amendments of substance to be made not less than thirty days before the omnibus date, regardless of whether they…”
McIntyre v. State, 717 N.E.2d 114 (Ind. 1999).
· cites it 22× “) On May 16, 1995, after learning that McIntyre intended to assert that the State could not prove the specific order of the deaths it had alleged, the new prosecutor, Scott Duerring, moved to amend the information, *125 arguing the proposed change was proper under the statute…”
Absher v. State, 866 N.E.2d 350 (Ind. Ct. App. 2007).
· cites it 12× “Absher argues on appeal that the trial court erred in permitting the State to amend its charging information by adding two additional counts after the expiration of the time limit set forth in I.C. § 35-34-1-5 (West, PREMISE through 2006 Second Regular Session).”
David Jones v. Dushan Zatecky, 917 F.3d 578 (7th Cir. 2019).
· cites it 9× “At the time of David Jones’s arrest and prosecution in 2005, Ind. Code § 35-34-1-5 (1982) identified an “omnibus date” and allowed prosecutors to make sub- stantive amendments to pending charges only up to 30 days 2 No.”
— Ind. Code § 35-34-1-5(a) — 15 cases
Ramon v. State, 888 N.E.2d 244 (Ind. Ct. App. 2008).
“The State pointed out that on May 8, 2007, the Indiana General Assembly amended Indiana Code Ann. § 35-34-1-5 (West, PREMISE through 2007 1st Regular Sess.”
— Ind. Code § 35-34-1-5(a)(1) — 3 cases
— Ind. Code § 35-34-1-5(a)(5) — 2 cases
— Ind. Code § 35-34-1-5(a)(7) — 3 cases
— Ind. Code § 35-34-1-5(a)(9) — 5 cases
— Ind. Code § 35-34-1-5(b) — 44 cases
William E. Mays v. State of Indiana, 120 N.E.3d 1070 (Ind. Ct. App. 2019).
“2008) ], this court held that the application of the revised Indiana Code section 35-34-1-5 did not violate the ex post facto provisions of the Indiana and United States Constitutions because the statutory amendment was procedural.”
Ramon v. State, 888 N.E.2d 244 (Ind. Ct. App. 2008).
“The State pointed out that on May 8, 2007, the Indiana General Assembly amended Indiana Code Ann. § 35-34-1-5 (West, PREMISE through 2007 1st Regular Sess.”
Brown v. State, 912 N.E.2d 881 (Ind. Ct. App. 2009).
“Amendments to a charging information are governed by Ind.Code Ann. § 35-34-1-5 (West, PREMISE through *888 Public Laws approved and effective through 4/20/2009).”
Gomez v. State, 907 N.E.2d 607 (Ind. Ct. App. 2009).
“He specifically contends that the amendment of the charging information was not timely filed because, under the version of Indiana Code section 35-34-1-5 in effect at the time Gomez committed the instant offense, the State could only make a substantive amendment to the charging…”
— Ind. Code § 35-34-1-5(b)(1) — 9 cases
Absher v. State, 866 N.E.2d 350 (Ind. Ct. App. 2007).
“Absher argues on appeal that the trial court erred in permitting the State to amend its charging information by adding two additional counts after the expiration of the time limit set forth in I.C. § 35-34-1-5 (West, PREMISE through 2006 Second Regular Session).”
— Ind. Code § 35-34-1-5(b)(2) — 6 cases
— Ind. Code § 35-34-1-5(c) — 38 cases
Carltez Taylor v. State of Indiana, 86 N.E.3d 157 (Ind. 2017).
“Taylor’s second contention is that the State violated Indiana Code section 35-34-1-5 (2014) by amending the conspiracy to commit murder charge just two days before trial.”
Brown v. State, 912 N.E.2d 881 (Ind. Ct. App. 2009).
“Amendments to a charging information are governed by Ind.Code Ann. § 35-34-1-5 (West, PREMISE through *888 Public Laws approved and effective through 4/20/2009).”
Ramon v. State, 888 N.E.2d 244 (Ind. Ct. App. 2008).
“The State pointed out that on May 8, 2007, the Indiana General Assembly amended Indiana Code Ann. § 35-34-1-5 (West, PREMISE through 2007 1st Regular Sess.”
Absher v. State, 866 N.E.2d 350 (Ind. Ct. App. 2007).
“Absher argues on appeal that the trial court erred in permitting the State to amend its charging information by adding two additional counts after the expiration of the time limit set forth in I.C. § 35-34-1-5 (West, PREMISE through 2006 Second Regular Session).”
— Ind. Code § 35-34-1-5(d) — 7 cases
— Ind. Code § 35-34-1-5(e) — 34 cases
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