A recent conversation reminded me about a question I’ve received several times over the years: On a habitual felon indictment, what should be listed as the offense date? The two main choices are (1) the date of the substantive felony with which the defendant is charged, and (2) the date of the last of the defendant’s previous convictions, i.e., the date that the defendant became a habitual felon. A reasonable argument can be made for either one, but neither is perfect. Using the date of the substantive felony may result in uncertainty when the habitual felon indictment attaches to several substantive felonies committed on multiple dates. On the other hand, using the date of the last of the defendant’s previous convictions may be confusing when a defendant has more previous convictions than are included in the habitual felon indictment. In such a case, the defendant may actually have become a habitual felon on a date earlier than the date of the last conviction that is listed in the indictment. No appellate case or statute directly resolves which approach is preferable. I suspect that our appellate courts would approve of either approach. However, I lean towards using the date of the substantive felony. If the defendant is charged with multiple substantive felonies that were allegedly committed on different dates, I recommend using a date range that encompasses the substantive offenses. The main reason that I recommend that approach is that the few appellate cases to discuss the offense date on habitual felon [...]
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