Utterback v. State

Decision Date02 May 1974
Docket NumberNo. 474S91,474S91
Citation310 N.E.2d 552,261 Ind. 685
PartiesDale E. UTTERBACK, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

J. E. Holwager, of Holwager & Harrell, Beech Grove, for appellant.

Theo. L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., for appellee.

OPINION ON PETITION TO TRANSFER

PRENTICE, Justice.

This case is before us upon the plaintiff's (appellee's) petition to transfer from the Court of Appeals, Second District. The decision and opinion of that Court which appears at 300 N.E.2d 688 reversed the judgment of the trial court upon the first issue as hereinafter discussed. Transfer is hereby granted, and the decision of the Court of Appeals is set aside.

Defendant was convicted of second degree burglary in a trial by jury and was sentenced to imprisonment for not less than two (2) nor more than five (5) years. His appeal presents four issues, to-wit:

I. Ruling of the trial court denying the defendant's motion for discharge under Criminal Rule 4(B).

II. Ruling of the trial court permitting the State to amend the affidavit on the day of trial.

III. Denial of the defendant's challenge to the array by reason of some discussion of the case having taken place in the court room in their presence.

IV. Overruling, in advance of filing, of a defense motion for mistrial.

ISSUE I. The defendant, by counsel, filed a motion for early trial on May 18, 1972. The court, at that time and in the presence of the prosecutor and the defense counsel, set the trial for August 7, 1972. Without taking into account a possible intervention of holidays, this appears to have been fifty-four judicial days later. The defendant appeared on the date of trial and filed his motion for discharge for delay beyond fifty judicial says, relying upon Criminal Rule 4(B).

In Bryant v. State (1973), Ind., 301 N.E.2d 179 and in Layton v. State (1973), Ind., 301 N.E.2d 633, we held that under Criminal Rule 4 it was incumbent upon the defendant to protest, at his first opportunity, if his trial date was set for a date subsequent to that permitted under the rule and that his failure to do so must be regarded as acquiescence and a waiver. These cases concerned the six months rule rather than the fifty judicial day rule and had not yet been decided when the decision in the case under consideration was made. The State claimed that the defendant was estopped to invoke the rule, inasmuch as he did not object at the time of the setting. The Court of Appeals, however, was not impressed by this rationale and simply said: 'We do not perceive the protections afforded by Rule CR. 4(B) to require a defendant to familiarize the prosecutor and the court with critical procedures. It is the responsibility of the State to prosecute and to prosecute properly.'

On petition for rehearing, the Court of Appeals acknowledged the subsequent holding of this Court in Bryant and Layton, which had been handed down in the interim, but held that they were not applicable to the fifty judicial day rule, saying 'We do not construe Rule CR. 4(B) to require a similar objection. Such would be redundant. The fifty (50) day period specified in Rule CR. 4(B) does not commence until after the defendant has taken affirmative action, i.e., requested an early trial. Such defendant cannot properly be said to have set a trap for the prosecution by failing to assert his rights as was the apparent rationale for the holding in Bryant v. State, supra.' The Court of Appeals further regarded the provision for discharge in Rule CR. 4(B), which was not embodied in CR. 4(A) as being significant.

We did not intend, either by Bryant, supra, or Layton, supra, to imply that the defendant had laid a trap for the court or that our decision based upon waiver should not be equally applicable under both Rule CR. 4(A) and Rule CR. 4(B). The slight difference in the mechanical operation to the two rules does not warrant a different treatment when the court errs and the error is known to the party. The purpose of ISSUE II. Defendant was originally charged in Municipal Court on April 6, 1972. On April 10th, he waived his right to a probable cause hearing and was bound over to Criminal Court. On April 26th, counsel was appointed and the defendant waived arraignment and entered a plea of not guilty. A pre-trial conference was set for May 10th. The conference was held as scheduled and the cause was set for trial by court for May 18th. On May 18th, the defendant requested an early jury trial under Rule CR. 4(B). The motion was granted and the trial set for August 7th.

the rules is to assure early trials and not to discharge defendants. The material difference between the rules is that under the one the time starts running automatically, while under the other the defendant must trigger it with a motion. In either event, when a ruling is made that is incorrect, and the offended party is aware of it, or reasonably should be presumed to be aware of it, it is his obligation to call it to the court's attention in time to permit a correction. If he fails to do so, he should [261 Ind. 688] not be heard to complain. The courts are under legal and moral mandate to protect the constitutional rights of accused persons, but this should not entirely relieve them from acting reasonably in their own behalf. We will vigorously enforce the right to a speedy trial, but we do not intend that accused persons should escape trial by abuse of the means that we have designed for their protection.

At the appointed time for trial, the State filed an amended affidavit charging the same offenses but with somewhat greater specificity. The defendant thereupon filed his Rule 4(B) motion previously discussed, and after the same was overruled, he entered his objection to the filing of an amended affidavit.

The affidavit filed in Municipal Court, in pertinent parts, was as follows:

'* * * on or about April 5, 1972 at and in the County and State aforesaid, did then and there unlawfully, feloniously, and burglariously, break and enter into Building or Structure of Triangle Market situated upon premises known as 600 N. Massachusetts Ave., Marion County, Indiana, with the intent to commit a felony therein to-wit: Theft--OAPA.'

The amended affidavit filed in Criminal Court, in pertinent parts, was as follows:

'* * * on or about the 5th day of April, A.D. 1972, at and in the County of Marion in the State of Indiana, did then and there unlawfully, feloniously and burglariously break and enter into the building and structure of George Estell, Deborah Estell, Mike Cassorla and Helen Cassorla, partners, doing business as Triangle Market, then and there situate at 600 North Massachusetts Avenue, City of Indianapolis, County of Marion, State of Indiana, which said building and structure was not a place of human habitation, with the intent to commit a felony therein, to wit: to unlawfully and feloniously and knowingly obtain and exert unauthorized control over property of said George Estell, Deborah Estell, Mike Cassorla and Helen Cassorla, partners, doing business as Triangle Market intending to deprive said George Estell, Deborah Estell, Mike Cassorla and Helen Cassorla, partners, doing business as Triangle Market of the use and benefit of said property, * * *.'

The defendant has pointed out to us that the amended affidavit had been executed on April 18th and that the State had had ample opportunity to file it prior to the trial date. We agree, and unquestionably the preferred practice is to file an amended affidavit, when necessary, at the earliest possible time. We do not agree, however, that there were substantive changes in the amended affidavit, and we fail to perceive harm thereby. He could not have been misled or placed under a greater burden in the preparation of his Defendant further argues that to permit the late filing of the amended affidavit was erroneous in that it entitled him to a continuance but that to have moved for such would have prejudiced his right to a discharge under Rule CR. 4. However, we do not agree that he would have been entitled to a continuance in this case. A motion therefor would have been properly refused, hence we need not go to that question.

defense. In...

To continue reading

Request your trial
61 cases
  • Mayes v. State
    • United States
    • Indiana Appellate Court
    • November 13, 1974
    ...the Marion County Municipal Court to the Criminal Court until May 25, 1972 and was not tried until July 17, 1972. In Utterback v. State (1974), Ind., 310 N.E.2d 552, our Supreme Court construed the discharge provision of Rule CR. 4(B) and held that a defendant must object prior to expiratio......
  • Bardonner v. State
    • United States
    • Indiana Appellate Court
    • March 12, 1992
    ...166 N.E.2d 326. Defendant should have moved to strike, discharge the jury panel, or challenge the array. See, e.g., Utterback v. State (1974), 261 Ind. 685, 310 N.E.2d 552, and Didio v. State (1984), Ind., 471 N.E.2d 1117, The majority relies upon Robinson v. State (1973), 260 Ind. 517, 297......
  • 84 Hawai'i 191, State v. Schmidt, 17185
    • United States
    • Hawaii Court of Appeals
    • January 17, 1997
    ...into plea bargaining attempts" and then demand dismissal after expiration of the speedy trial period); cf. Utterback v. State, 261 Ind. 685, 310 N.E.2d 552, 554 (1974) ("We will vigorously enforce the right to a speedy trial, but we do not intend that accused persons should escape trial by ......
  • Dean v. State
    • United States
    • Indiana Supreme Court
    • April 14, 1982
    ...163 Ind.App. 546, 550, 325 N.E.2d 227, 230; State v. Henry, (1975) 163 Ind.App. 305, 323 N.E.2d 258. See Utterback v. State, (1974) 261 Ind. 685, 687, 310 N.E.2d 552, 553-54. In determining whether or not there has been a constitutional violation of the right to a speedy trial, the court mu......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT