It is discretionary with the judge whether to allow temporary admission to an out-of-state attorney. See Sparks v. State, 537 N.E.2d 1179, 1181 (Ind. 1989). In seeking temporary admission, an out-of-state attorney must make certain representations under oath, including:
In a unanimous opinion, we hold today that this Court has "long adhered to a series of rules of statutory construction and common law that are often described as double jeopardy, but are not governed by the constitutional test set forth in Richardson."Pierce v. State, ___ N.E.2d ___, No. 49S00-0011-CR-710 (Ind. Jan. 29, 2002). It is true there is case authority standing for the proposition that a defendant may be convicted of both conspiracy to commit a felony and the underlying felony. See, e.g., Griffin v. State, 717 N.E.2d 73, 89 (Ind. 1999) (robbery and conspiracy to commit robbery), cert. denied, 530 U.S. 1247 (2000); Witte v. State, 550 N.E.2d 68, 71 (Ind. 1990) (murder and conspiracy to commit murder); Sparks v. State, 537 N.E.2d 1179, 1184 (Ind. 1989) (burglary and conspiracy to commit burglary). However, consistent with today's holding in Pierce, this Court has not allowed to stand a conviction for conspiracy where the overt act that constitutes an element of the conspiracy is the same act as another crime for which the defendant has already been convicted.
Today's decision does not necessarily affect the body of case law from this Court which makes it clear that a defendant may be convicted of both conspiracy to commit a felony and commission of the underlying felony. See e.g. Witte v. State (1990), Ind., 550 N.E.2d 68, 71 (murder and conspiracy to commit murder); Whittle v. State (1989), Ind., 542 N.E.2d 981, 991 (murder and conspiracy to commit murder); Sparks v. State (1989), Ind., 537 N.E.2d 1179, 1184 (burglary and conspiracy to commit burglary); Chinn v. State (1987), Ind., 511 N.E.2d 1000, 1003 (murder and conspiracy to commit murder); Hossman v. State (1985), Ind. App., 482 N.E.2d 1150, 1153 (burglary and conspiracy to commit burglary); see also United States v. Felix, ___ U.S. ___, ___, 112 S.Ct. 1377, 1384, 118 L.Ed.2d 25 (1992) (various substantive drug offenses and conspiracy to illegally manufacture drugs). Rather, the holding of this case is limited to those instances where the charging document and the jury instructions rely on the same facts to prove both accomplice liability for the commission of the underlying crime as well as the overt act committed in furtherance of the conspiracy.
The State points to two cases which it claims stand for the proposition that so long as the State proves two valid felonies, habitual offender findings may be affirmed. First, in Sparks v. State (1989), Ind., 537 N.E.2d 1179, 1184-85, one of the prior convictions had been pardoned. This Court concluded that any error was harmless because the jury was properly instructed that the conviction had been pardoned.
“It is discretionary with the judge whether to allow temporary admission to an out-of-state attorney.” Id. (citing Sparks v. State, 537 N.E.2d 1179, 1181 (Ind.1989), reh'g denied ). To the extent that this case requires us to review whether the court abused its discretion, we note that “[a] trial court abuses its discretion if its decision clearly contravenes the logic and effect of the facts and circumstances or if the trial court has misinterpreted the law.”
What if one of the convictions relied upon was later overturned? See Sparks v. State (1989), Ind., 537 N.E.2d 1179, 1184-85; Eldridge v. State (1986), Ind., 498 N.E.2d 12, 13; Miller v. State (1981), 275 Ind. 454, 458-60, 417 N.E.2d 339, 342-43. What if the person accumulated the felonies as a result of convictions in our sister states, which either did not share Indiana's classification system or punished the same behavior differently than did Indiana?