concurrence">SULLIVAN, Judge,

concurring and concurring in result.

I fully concur in the majority opinion with regard to the issue of restitution. I join *1340Judge Hoffman’s separate opinion concerning the double jeopardy issue and would merely add a few supplemental comments.

The “cure order” assessing a penalty of $100 per day was prospective only, dating from December 4, 1992. Of the two counts of which Head was convicted, one count alleged that the open dumping violation began on February 14, 1991. The second count alleged that the permit violation began on December 13,1991. Thus the criminal violations took place and were punishable for conduct that had been committed prior to the commencement date of the coercive compliance order of December 4, 1992. Although there may have been an overlapping of a portion of the periods during which the criminal conduct continued, and the period covered by the “cure order”, the overlap is of no moment insofar as double jeopardy is concerned. The validity of the criminal convictions is unrelated to the cure-penalty period and the validity of the cure-penalty is unrelated to the already complete and punishable criminal conduct which took place prior to the “cure order”.

. With respect to the remedial-penal analysis of the majority opinion, I am unable to conclude that the fact that the fine inures to the benefit of the Environmental Management Special Fund determines its underlying nature. I do, however, agree that the penal aspect is “merely incidental to the overriding remedial” effect of forcing compliance with the injunctive order. See Schrefler v. State (1996) Ind.App., 660 N.E.2d 585, 588.2

Subject to the comments herein, I concur in the affirmance of the two convictions and of the restitution order.

. With respect to the remedial-penal analysis, it should be noted that Schrefler v. State, supra,was a non-analogous driver’s license suspension case. I am unable, however, to reconcile that case with Mitchell v. State (1995) Ind., 659 N.E.2d 112, which held that the administrative license suspension statute is a penal statute. This dichotomy invites consideration of United States v. Ursery (1996) - U.S. -, 116 S.Ct. 2135, 135 L.Ed.2d 549, which indicates that the focus of the inquiry is whether the civil or administrative proceeding is personal or in rem in its thrust. Here, the thrust of the "cure order” is clearly personal in its effect upon Head, but the purpose of the proceeding is clearly remedial. In any event, the remedial aspects of the "cure order” dictate my concurrence in the affirmance of the convictions.

Citation profile

Relationships

How this case has been treated — in progress