Cyrus further held before a trial court may enter a judgment upon multiple counts, the facts must be independently supportable, separate and distinct. Where judgment is entered and sentencing is had on both a greater and a lesser charge, the lesser charge should be vacated. Lindsey v. State (1976), 264 Ind. 198, 341 N.E.2d 505, 509. The State's only response on this issue is that Collins sold two grams of methamphetamine to the trooper and retained an additional gram after the sale, which showed a possession of methamphetamine other than that which was sold.
Nelson v. State, (1980) 274 Ind. 218, 409 N.E.2d 637, 639. We are, nevertheless, at liberty to review questions, notwithstanding non-compliance with our rules, Lindsey v. State, (1976) 264 Ind. 198, 341 N.E.2d 505; and we deem this an appropriate case for such action, in view of the gravity of the matter and the need for guidance concerning a newly established procedure. Although we have condemned arguments and instructions that invite or tempt the jury to consider the ultimate sentence likely to be served, Feggins v. State, (1977) 265 Ind. 674, 359 N.E.2d 517; Inman v. State, (1979) 271 Ind. 491, 393 N.E.2d 767, our concern has been with cases where there was no need for the jury to have such information, because, under the law, they were not concerned with sentencing.
Where a sentence is pronounced on both the greater charge and on a lesser included offense of the greater charge, the lesser offense's sentence will be vacated. Lindsey v. State, (1976) 264 Ind. 198, 341 N.E.2d 505; Havener v. State, (1955) 234 Ind. 148, 125 N.E.2d 25. For all of the foregoing reasons, this case is remanded, and the trial court is directed to vacate both the judgment and the sentence for Count II, possession of a controlled substance.
Our law prohibits entry of judgment and sentencing on both the greater offense and a necessarily lesser included offense. Ind. Code § 35-4.1-4-6 (d) (Burns 1975); Thomas v. State, (1976) 264 Ind. 581, 348 N.E.2d 4; Lindsey v. State, (1976) 264 Ind. 198, 341 N.E.2d 505; and Thompson, supra. The state contends that robbery while armed is not a lesser included offense of felony murder and that felony murder has lesser included offenses only in limited and particular circumstances.
The judgment of the trial court will not be overturned if there is substantial evidence of probative value from which the court could reasonably infer the defendant was guilty beyond a reasonable doubt. Lindsey v. State (1976), 264 Ind. 198, 341 N.E.2d 505. In the present case, the testimony of five police officers clearly fulfills the test of sufficient evidence.
Cf. Thompson v. State (1972), 259 Ind. 587, 290 N.E.2d 724. Where a sentence is pronounced on both the greater charge, and on a lesser included offense of the greater charge, the lesser offense's sentence will be vacated. Lindsey v. State (1976), 264 Ind. 198, 341 N.E.2d 505; Franks v. State (1975), 262 Ind. 649, 323 N.E.2d 221; Havener v. State (1955), 234 Ind. 148, 125 N.E.2d 25; Carter v. State (1951), 229 Ind. 205, 96 N.E.2d 273; Kokenes v. State (1938), 213 Ind. 476, 13 N.E.2d 524; Overton v. State (1974), 161 Ind. App. 650, 317 N.E.2d 467. CONCLUSION:
Indiana is one such state that has required a showing that a confession was voluntarily made beyond a reasonable doubt. Ortiz v. State, supra, 356 N.E.2d 1188, 1191; Lindsey v. State (1976), 264 Ind. 198, 341 N.E.2d 505, 510; Magley v. State (1975), 263 Ind. 618, 335 N.E.2d 811, 817; Burton v. State (1973), 260 Ind. 94, 292 N.E.2d 790, 797-98. The majority agrees that the trial court erred in incorrectly instructing the jury.
There remained a reasonable doubt as to whether Robinson's will had been bent over the edge of a rapidly deteriorating mental and physical condition which had previously resisted all invitations to make a statement. Miranda v. State of Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Lindsey v. State (1976), 264 Ind. 198, 341 N.E.2d 505; Burton v. State (1973), 260 Ind. 94, 292 N.E.2d 790; Brown v. State (1971), 256 Ind. 558, 270 N.E.2d 751; Nacoff v. State (1971), 256 Ind. 97, 267 N.E.2d 165. Also see, Works v. State (1977), 266 Ind. 250, 362 N.E.2d 144; Ortiz v. State (1976), 265 Ind. 549, 356 N.E.2d 1188; Ashby v. State (1976), 265 Ind. 316, 354 N.E.2d 192; Garrett v. State (1976), 265 Ind. 63, 351 N.E.2d 30; and for the Federal preponderance standard see Lego v. Twomey (1972), 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618. The State has failed to carry the burden of proving beyond a reasonable doubt that Robinson's statement was voluntary; therefore, I dissent, and I would reverse and remand for a new trial.
However, at the hearing on a motion to suppress a confession the state bears the heavy burden of [1] proving the confession voluntary beyond a reasonable doubt. Lindsey v. State (1976), 264 Ind. 198, 341 N.E.2d 505; Magley v. State (1975), 263 Ind. 618, 335 N.E.2d 811. On review this court will not disturb a trial court's ruling on the admissibility of a confession or other statement given the police if based on substantial — albeit conflicting — evidence.
The conviction will be affirmed if from that viewpoint there is evidence of probative value from which the trier of fact could reasonably infer that the defendant was guilty beyond a reasonable doubt. Lindsey v. State (1976), 264 Ind. 198, 341 N.E.2d 505, 509; Simpson v. State (1975), 164 Ind. App. 307, 328 N.E.2d 462, 465. In the case at bar Robertson testified that he had between $18.00 and $20.00 in one of his front pockets while shooting pool at the Liberty Bar. He remembered being hit and then waking up in the hospital.