419 N.E.2d 256 (Ind.App. 1 Dist. 1981), 1-1280A347, Martin v. State

Docket Nº1-1280A347.
Citation419 N.E.2d 256
Party NameDon MARTIN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
Case DateApril 21, 1981
CourtCourt of Appeals of Indiana

Page 256

419 N.E.2d 256 (Ind.App. 1 Dist. 1981)

Don MARTIN, Defendant-Appellant,

v.

STATE of Indiana, Plaintiff-Appellee.

No. 1-1280A347.

Court of Appeals of Indiana, First District.

April 21, 1981

Page 257

James H. Voyles, Ober, Symmes, Cardwell, Voyles and Zahn, Indianapolis, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Richard A. Alford, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

NEAL, Presiding Judge.

STATEMENT OF THE CASE

Defendant-appellant Don Martin (Martin) appeals his conviction of bribery 1 entered in the Harrison Circuit Court upon a jury verdict.

We affirm.

ISSUES

Martin presents nine issues for review which, in his brief, he has condensed into three arguments. We will address those arguments which may be stated as follows:

I. Whether the trial court committed error in overruling Martin's objection to setting a trial date beyond the one year limitation provided by Ind. Rules of Procedure, Criminal Rule 4(C);

II. Whether the trial court committed reversible error in the admission of State's Exhibit No. 1 containing hearsay evidence;

III. Sufficiency of the evidence.

DISCUSSION AND DECISION

Issue I. Discharge for delay under C.R. 4(C)

Indiana Rules of Procedure, Criminal Rule 4(C) provides:

"(C) Defendant discharged. No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of 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. Any defendant so held shall, on motion, be discharged." (Emphasis added.)

The record discloses that the information was filed on March 6, 1979, and a warrant was issued on that date. No return of the warrant, nor any other statement of Martin's subsequent arrest exists in the record. We, therefore, are unable to determine when Martin was arrested, a necessary element in the commencement of the running

Page 258

of the one year limitation for bringing a defendant to trial. Martin's attorney filed an appearance on March 26, 1979, and the record shows that he moved for and was granted an indefinite continuance. The record does not disclose that a trial setting was made on March 26, 1979. Also, no arraignment or plea was entered, on record, at that time or ever. Further, we are unable to resolve from what action or proceeding the continuance was granted. Nothing further occurred in the case until February 1, 1980, when the trial court, upon motion by the State, set the cause for trial on February 28, 1980. On March 18, 1980, the State filed a motion to set the trial for a date certain. Then, on March 19, 1980, the trial court set a new trial date for June 10, 1980. However, the record is silent as to what happened to the February 28 trial date. On March 25, 1980, Martin filed an objection to the June 10, 1980, trial setting, which omitting heading and signature, reads as follows:

"Objection to Trial Date

Comes now defendant by attorney, and shows the court that on March 19, 1980 a trial in the above entitled cause of action was set for June 10, 1980. Defendant further shows the court that the date is outside of the time limit, in which the State of Indiana must try the defendant in accordance with Indiana Rules of Procedure, Criminal Rule 4.

Wherefore defendant enters this objection to any trial date that is set, which is outside the time limit allowed by Trial Rule 4 and specifically objects to the order of March 19, 1980, which set this cause for trial on June 10, 1980."

The objection was overruled after an oral argument; however, no record exists of that argument. No further mention is made of the matter in the transcript until the motion to correct errors. No motion for discharge was ever filed by defendant Martin.

There are numerous cases construing C.R. 4 and its predecessors. The burden is upon the State to bring a defendant to trial within one year, and C.R. 4(C) relieves the State from that duty only for a delay caused by the defendant's own act, or a continuance had on the defendant's own motion. Wilson v. State, (1977) 172 Ind.App. 696, 361 N.E.2d 931. This duty is an affirmative one which rests upon the State; the defendant has no obligation to remind the court of its duty. Simpson v. State, (1975) 165 Ind.App. 285, 332 N.E.2d 112. When delay is chargeable to the defendant the period fixed by the rule is extended only by the period of that delay. Simpson, supra. When a defendant learns within the period provided by the rule that the case is set for trial at a time beyond the date permitted, and the defendant makes no objection, he will be deemed to have waived the error. Arch v. State, (1978) 269 Ind. 450, 381 N.E.2d 465; Wilson supra; Bryant v. State, (1973) 261 Ind. 172, 301 N.E.2d 179. Objection to such trial setting must be made at the earliest opportunity so that the trial court can reset the trial for a date within the proper period. State ex rel. Wernke v. Superior Court of Hendricks County, (1976) 264 Ind. 646, 348 N.E.2d 644; State v. Rehborg, (1979) Ind.App., 396 N.E.2d 953; State v. Laslie, (1978) Ind.App., 381 N.E.2d 529; Tyner v. State, (1975) 166 Ind.App. 45, 333 N.E.2d 857.

Martin and the State both devote much argument to the delay caused by Martin's continuance, granted on March 26, 1979. The State contends that Martin is chargeable with the delay from March 26, 1979, to February 1, 1980. Martin argues that since the record does not disclose a written motion for continuance as required by Ind. Rules of Procedure, Trial Rule 7, he is not chargeable with any delay, and, therefore, was entitled to a discharge at the end of one year beginning from March 6, 1979, or March 26, 1979. The condition of the record renders a definitive opinion impossible on the subject of delay. However, it is not necessary.

Attention is directed to the last line of C.R. 4(C) which provides that "(a) ny defendant so held shall, on motion, be discharged." (Emphasis added.) The motion contemplated by C.R. 4(C) is not the same

Page 259

instrument, nor does it perform the same function as the objection to the trial setting contemplated in Wilson, supra. The purpose of requiring the defendant to make an objection to a trial date set beyond the one year limitation was stated in Utterback v. State, (1974) 261 Ind. 685, 310 N.E.2d 552:

"(W)hen 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."

261 Ind. at 687, 310 N.E.2d 552. A motion for discharge under C.R. 4(C) must, by necessity, be filed at a time later than the filing of the objection and after the one year has run and the defendant has still not been brought to trial. If it is filed prior to the running of the year it is premature. State ex rel. Garvin v. Dearborn Circuit Court, (1972) 257 Ind. 631, 277 N.E.2d 370. Under prior law, it is generally held that the right to discharge for delay in bringing a defendant to trial is waived if the proper motion is not made before...

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19 practice notes
  • 622 N.E.2d 541 (Ind.App. 1 Dist. 1993), 41A01-9211-CR-364, Raber v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • October 20, 1993
    ...Ind.App., 466 N.E.2d 66, 70. It was only necessary that he move for discharge prior to trial. See Martin v. State (1981), Ind.App., 419 N.E.2d 256, 259; State v. Rehborg (1979), Ind.App., 396 N.E.2d 953, 954, trans. denied; Randolph v. State (1954), 234 Ind. 57, 62, 122 N.E.2d 860, 864. Rab......
  • 469 N.E.2d 31 (Ind.App. 4 Dist. 1984), 4-783A230, Hinds v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • October 10, 1984
    ...time within which it was required to try Hinds was extended by any delays caused by Hinds. C.R. 4(C); Martin v. State, (1981) Ind.App., 419 N.E.2d 256. The trial on this charge was initially set for September 22, 1981. By agreement between Hinds and the state, however, trial was reset for J......
  • 503 N.E.2d 390 (Ind. 1987), 684S248, Floyd v. State
    • United States
    • Indiana Supreme Court of Indiana
    • January 28, 1987
    ...is sufficient, standing alone, to support the conviction. Taylor v. State (1981), Ind., 425 N.E.2d 141; Martin v. State (1981), Ind.App., 419 N.E.2d 256. We hold the evidence is more than ample to support the jury Appellant claims his trial was improperly lodged in Lawrence County because t......
  • 466 N.E.2d 66 (Ind.App. 4 Dist. 1984), 4-683A204, State v. Tomes
    • United States
    • Indiana Court of Appeals of Indiana
    • July 26, 1984
    ...is chargeable to defendant, the period fixed by C.R. 4(C) is extended only by such period of delay. Martin v. State, (1981) Ind.App., 419 N.E.2d 256. In the present case, defendant's trial was not rescheduled until January 7, 1983, when it was reset for the following March 3. Given this lap......
  • Request a trial to view additional results
19 cases
  • 469 N.E.2d 31 (Ind.App. 4 Dist. 1984), 4-783A230, Hinds v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • October 10, 1984
    ...time within which it was required to try Hinds was extended by any delays caused by Hinds. C.R. 4(C); Martin v. State, (1981) Ind.App., 419 N.E.2d 256. The trial on this charge was initially set for September 22, 1981. By agreement between Hinds and the state, however, trial was reset for J......
  • 622 N.E.2d 541 (Ind.App. 1 Dist. 1993), 41A01-9211-CR-364, Raber v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • October 20, 1993
    ...Ind.App., 466 N.E.2d 66, 70. It was only necessary that he move for discharge prior to trial. See Martin v. State (1981), Ind.App., 419 N.E.2d 256, 259; State v. Rehborg (1979), Ind.App., 396 N.E.2d 953, 954, trans. denied; Randolph v. State (1954), 234 Ind. 57, 62, 122 N.E.2d 860, 864. Rab......
  • 466 N.E.2d 66 (Ind.App. 4 Dist. 1984), 4-683A204, State v. Tomes
    • United States
    • Indiana Court of Appeals of Indiana
    • July 26, 1984
    ...is chargeable to defendant, the period fixed by C.R. 4(C) is extended only by such period of delay. Martin v. State, (1981) Ind.App., 419 N.E.2d 256. In the present case, defendant's trial was not rescheduled until January 7, 1983, when it was reset for the following March 3. Given this lap......
  • 503 N.E.2d 390 (Ind. 1987), 684S248, Floyd v. State
    • United States
    • Indiana Supreme Court of Indiana
    • January 28, 1987
    ...is sufficient, standing alone, to support the conviction. Taylor v. State (1981), Ind., 425 N.E.2d 141; Martin v. State (1981), Ind.App., 419 N.E.2d 256. We hold the evidence is more than ample to support the jury verdict. Appellant claims his trial was improperly lodged in Lawrence County ......
  • Request a trial to view additional results

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