Simpson v. State, 3474A67
| Decision Date | 04 August 1975 |
| Docket Number | No. 3474A67,3474A67 |
| Citation | 332 N.E.2d 112,165 Ind.App. 285 |
| Parties | Gene Raymond SIMPSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Anthony V. Luber, South Bend, for appellant-defendant.
Theodore L. Sendak, Atty. Gen., G. Philip Duckwall, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.
From his conviction for the sale of heroin, Simpson appeals on the ground that the trial court erred in overruling his motion for discharge pursuant to Indiana Rules of Procedure, Criminal Rule 4(B). Although Simpson raises several other issues on appeal, we conclude that Simpson was entitled to a discharge and, therefore, do not reach these other issues.
On September 28, 1972, Simpson was charged in three separate causes with the possession and sale of heroin. These three causes were set for trial in February, 1973, but Simpson failed to appear. Later, Simpson appeared in court on April 9, 1973, and the Court ordered his bond raised in each of the three causes from $3,000 to $5,000. On April 11, 1973, Simpson filed his motion for early trial in all three causes against him pursuant to CR. 4(B), which at that time provided:
'If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within fifty (50) judicial days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such fifty (50) judicial days because of the congestion of the court calendar.
Provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule.'
The only action taken by anyone during the running of the fifty judicial day period was Simpson's request on the twenty -eighth judicial day of the period that the appointment of his court-appointed counsel be vacated and that another attorney be appointed. 1 On that same twenty-eighth judicial day Anthony V. Luber was appointed to represent Simpson. About two months after the running of the fifty judicial days, Simpson by his attorney, Luber, filed a motion for discharge in all three causes. After a hearing on Simpson's motion, the trial court denied the motion. Simpson filed a motion to reconsider his motion for discharge which was denied.
On October 1, 1973, the court took its first action since the filing of the motion for early trial to set the three causes for trial. Simpson was ordered to appear on October 5, 1973 for the 'purpose of setting said causes for trial.' Trial was held on October 5, 1973, and at that time, Simpson filed a motion to dismiss on the grounds that he was entitled to discharge under CR. 4. This motion was denied prior to trial for the following reasons:
'The Court will deny the motion for discharge in all three cases on the grounds that this case was set for trial in February of this year and defendant failed to appear. He was therefore attached by this Court but subsequent to that time he then requested that the public defender counsel appointed for him be dismissed. That's on May 22, 1973 and Leo Lamberson's appointment was vacated. The Court then appointed Anthony Luber to appear and represent the defendant. That said newly appointed counsel did not appear for the defendant of record until the filing of this motion; that the delays occasioned were initiated by the defendant's own conduct, also the Court's setting of criminal cases with the summer vacations intervening. The motion for discharge is denied in all three cases.
Defendant having filed motion to reconsider the Court again finds that the delaying and processing and hearing in this cause was primarily attributable to the actions of the defendant and upon reconsideration comes to the same ruling and denies motion for discharge. Now all three causes are to be tried this date, defendant now files motion to dismiss under CR. -4. Motions are denied in all three cases.'
Simpson was tried by a jury and found guilty as charged. He was subsequently sentenced to the Indiana State Prison for a period of not less than five (5) years nor more than twenty (20) years and fined $1,000.00.
CR. 4(B)
Under the version of CR. 4(B) in effect at the time of Simpson's motion for early trial, it was incumbent on the trial judge to set these three causes for trial within fifty (50) judicial days of the request. As in the case of Stokes v. State (1973), Ind.App., 299 N.E.2d 647, the record discloses that the court made no attempt to set the three causes against Simpson for trial prior to Simpson's motion for discharge. After filing his motion for early trial, no further affirmative action to see that his trial was set within the fifty day period was required of Simpson. To require Simpson to keep track of the running of the fifty day period and notify the court that the period was about to run is to emasculate CR. 4(B). Simpson had already notified the trial court that he wanted an early trial. The trial court had an affirmative duty to see that Simpson's causes were set for trial within the period of the rule. The local trial rules of the St. Joseph Superior Court in effect during these proceedings are a part of the record before this Court. There is no special procedure outlined for setting criminal cases for early trial. It appears that all criminal cases are placed on an assignment list on the basis of age. Given the importance of the early trial setting to a defendant and the State's interest in seeing that the request for early trial is honored to avoid the mandatory discharge provision of CR. 4(B), it is advisable for criminal courts and prosecutors to develop some special procedures for insuring that motion-for-early-trial causes are set for trial well within the period of CR. 4(B).
There can be no claim that Simpson acquiesced in the setting of his trial outside the fifty day period as in the cases of Utterback v. State (1974), Ind., 310 N.E.2d 552 and State ex rel. Wickliffe v. Judge of Criminal Court (Wilson) (1975), Ind., 328 N.E.2d 420. The trial court in the instant case neither set these causes for trial or pre-trial conference during the running of the fifty day period.
When a delay is chargeable to the defendant, the fifty day period is extended by the period of the delay. Gross v. State (1972), 258 Ind. 46, 278 N.E.2d 583. (See, current CR. 4(F), not in effect at the time of these proceedings.) The trial court denied Simpson's...
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