STATON, Judge.
The State petitions for rehearing of Valentin v. State, No. 49A02-9606-PC-376 (Ind. Ct. App. July 18, 1997), contending that a different result is compelled by the Indiana Supreme Court's recent changes to Indiana's application of the federal Double Jeopardy Clause delineated in Games v. State, 49S00-9002-PD-114 (Ind. July 22, 1997) and Grinstead v. State, 28S00-9506-CR-642 (Ind. July 22, 1997).
We deny the petition for rehearing.
Valentin was convicted of Conspiracy to Kidnap, Kidnapping, Felony Murder in the Commission of Kidnapping, and Robbery, reversed in part on direct appeal in Valentin v. State, 567 N.E.2d 792 (Ind. 1991). All of Valentin's convictions stem from hijacking a van in 1986 along with two accomplices. The kidnapped driver of the van was eventually killed. The only act in furtherance of the conspiracy to kidnap was the actual kidnapping itself. The trial court merged the conviction for the underlying crime of Kidnapping with the conviction for Felony Murder in the Commission of Kidnapping, but did not merge Valentin's conviction for Conspiracy to Kidnap with the Kidnapping conviction. After remand from the Indiana Supreme Court, consecutive sentences totaling 110 years were imposed on the convictions of Conspiracy to Kidnap, Felony Murder in the Commission of Kidnapping, and Robbery.
Valentin argued on appeal that because the only act in furtherance of the conspiracy to kidnap was the actual kidnapping, the one act of kidnapping formed the factual basis for both the Conspiracy to Kidnap and the Kidnapping convictions. He argued that his constitutional protection against double jeopardy was violated by his being punished multiple times for a single act due to the trial court's failure to merge the conspiracy conviction with the conviction for the underlying crime.
Applying Buie v. State, 633 N.E.2d 250, 261 (Ind. 1994), reh. denied, we determined that where the only act in furtherance of a conspiracy is the crime itself, double jeopardy bars conviction for both conspiracy and the underlying crime. Therefore we reversed and remanded the case with instructions to merge the Conspiracy to Kidnap conviction with the Kidnapping conviction, vacating the sentence of thirty years imprisonment for Conspiracy to Kidnap. Valentin's convictions for Robbery and Felony Murder, with their consecutive sentences of eighty years, were affirmed.
The State seeks rehearing based on the Indiana Supreme Court's recent rulings in Games v. State, No. 49S00-9002-PD-114 (Ind. July 22, 1997) and Grinstead v. State, No. 28S00-9506-CR-642. In both Games and Grinstead the Indiana Supreme Court held that its previous interpretations of the federal Double Jeopardy Clause did not comport with federal jurisprudence. Games, slip op. at 16; Grinstead, slip op. at 7. The Indiana Supreme Court held that the proper test to be applied under federal double jeopardy analysis is the two-fold inquiry enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under Blockburger, the court must first determine whether the legislature intended multiple punishments for a single act. Games, slip op. at 17. The federal Double Jeopardy Clause allows the legislature to impose multiple punishments for a single act, but requires that the legislative intent to do so be clearly demonstrated. Id.
If it is uncertain whether the legislature intended multiple punishments, then a comparison of the statutory provisions at issue is required. "The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." Games, slip op. at 18 (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309). This test limits the court to an examination of the relevant statutes. Grinstead, slip op. at 7. Prior Indiana cases suggesting that federal law requires a further inquiry into the factual elements of a crime were overruled. Games, slip op. at 16; Grinstead, slip op. at 7.
The State is correct in arguing that the statutory elements of Conspiracy to Kidnap and Kidnapping are different. Conspiracy to Kidnap requires proof of an agreement, but does not require proof of an actual Kidnapping. In contrast, Kidnapping requires proof of an actual kidnapping, but does not require proof of an agreement. Thus, under the federal test outlined in Games and Grinstead, double jeopardy would not be violated by sentences imposed on convictions for both crimes.
However, unaddressed by the Indiana Supreme Court in either Games or Grinstead is whether Article I, § 14 of the Indiana Constitution provides greater protection than the federal Double Jeopardy Clause. Moreover, the court expressly limited both decisions to a discussion of Indiana's application of federal law, declining to consider the Indiana Constitution. Games, slip op. at 14, footnote 7; Grinstead, slip op. at 6-7. Indiana's double jeopardy analysis goes beyond the simple comparison of statutes called for under federal jurisprudence and the Indiana Supreme Court has found violations of Article I, § 14 where a single act constituted the basis for multiple punishments. See Buie v. State, 633 N.E.2d 250, 260-61 (Ind. 1994). In Buie, the Indiana Supreme Court held that "where the overt act element of a conspiracy charge is the underlying offense, convictions and sentences for both would constitute multiple punishments for the same offense, which both the federal and Indiana constitutions forbid." Id. at 261 (emphasis added). Valentine invoked the protections of the Indiana Constitution in his brief and through his reliance on Indiana case law, including Buie. See Appellants Brief at 8-12. Therefore the petition for rehearing is denied.
FRIEDLANDER, J., concurs in result with separate opinion.
HOFFMAN, J., dissents with separate opinion.