State v. Tomes

Decision Date26 July 1984
Docket NumberNo. 4-683A204,4-683A204
Citation466 N.E.2d 66
PartiesSTATE of Indiana, Appellant (Plaintiff Below), v. Travis TOMES, Appellee (Defendant Below).
CourtIndiana Appellate Court

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellant.

Dennis Brinkmeyer, Evansville, for appellee.

YOUNG, Judge.

The State appeals an order granting the motion of Defendant-Appellee Travis Tomes for discharge pursuant to Ind.Rules of Procedure, Criminal Rule 4(C).

We affirm.

On July 3, 1980, Tomes was charged by information with four controlled substances violations. Arraignment having been deferred, he requested a change of venue from the judge on July 6, 1980; a special judge qualified on December 5, 1980. At that time, defendant waived formal arraignment, entered a plea of not guilty, and requested a trial by jury. The special judge originally set jury trial for April 20, 1981.

The trial date was twice rescheduled, first by the agreement of the parties for July 6, 1981, and then for September 24, 1981. In preparation for this latter trial date, the defense sought to depose a prosecution witness. Defendant filed notice to take deposition on September 9, 1981, and in order to depose the witness, moved for a continuance on September 17, 1981. The court granted the motion and vacated the scheduled trial without date.

The record shows no further proceedings in this cause until January 7, 1983, when trial was scheduled to commence on March 3, 1983. Although the court's minutes state that the trial date was set "by the agreement of the parties," defense counsel's affidavit, opposed by neither the court nor the prosecution, indicates that the defendant received no notice of the new trial date until the following week, and that on January 13, 1983, he promptly filed a motion for discharge. The court granted this motion and discharged the defendant on February 22, 1983.

Discharge for delay of a criminal trial for more than one year is governed by C.R. 4(C), which provides:

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.

In asserting that Tomes has been improperly discharged under this provision, the State fails to define the boundaries of the one-year period in question. Because the proceedings below span nearly three years, we cannot intelligibly discuss the specific issues in this case without a preliminary analysis of those proceedings. Reversal would require a determination that as a matter of law the statutory period had not expired prior to January 7, 1983, due to delays caused by the defendant.

The law is clear that under C.R. 4(C), any delays caused by defendant's acts extend the one-year time limitation by the length of such delays. Little v. State, (1981) Ind., 415 N.E.2d 44. A defendant's motion for change of venue from the judge, accordingly, tolls the statutory period until the new judge qualifies and assumes jurisdiction. State v. Grow, (1970) 255 Ind. 183, 263 N.E.2d 277. Thus, appellee is chargeable with the delay occasioned by his request for a change of venue from the judge, which motion occupied the period from July 6 to December 5, 1980. On the latter date, the special judge qualified and set trial for April 20, 1981.

The court's minutes reflect that by the agreement of the parties, this trial date was vacated on April 7 and reset for July 6, 1981. The delay from April 7 to July 6, therefore, is chargeable to the defendant, who acquiesced in vacation of the earlier trial date. See Ford v. State, (1975) 165 Ind.App. 303, 332 N.E.2d 221.

Trial was not held on July 6, however, and the court on July 8 reset trial for September 24, 1981. Nothing in the record indicates that the defendant either acquiesced or objected to this delay. We need not speculate regarding the causes of this delay, as this period is not determinative in calculation of the one-year statutory period. 1

Before the September 24 trial date, defendant on September 9, 1981, filed notice to depose State's witness Ric Allen. Deposition of this witness apparently required the defense to seek a continuance; the trial court granted this motion on September 17, 1981.

There can be no question that defendant is chargeable with the delay attributable to his motion for a continuance in order to depose a prosecution witness. Winningham v. State, (1982) Ind., 432 N.E.2d 24; Lyons v. State, (1982) Ind., 431 N.E.2d 78. However, when a delay in bringing defendant to trial 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 lapse of some 16 months, the specific issue in this case becomes the extent of the delay attributable to defendant's motion for a continuance in order to take the deposition.

Appellant's Brief is singularly unhelpful in our resolution of this issue. The State's sole contention, as developed in the single paragraph which comprises its substantive argument, is that appellee is not entitled to discharge because he was aware that the March 3, 1983, trial date was beyond the time limitation of C.R. 4(C), and yet he failed to object at a time when the court could still grant him a trial within the statutory period. 2 This argument is conveniently conclusory in its assumption that the statutory period was still running as of January 1983 and yet would have expired before March 3, 1983. 3 As our discussion below indicates, this questionable premise is the only logical possibility which could require reversal.

Given the lack of relevant argument by appellant, we are unwilling to search the record in order to supply theories upon which to reverse the trial court's order. For the sake of clarity, however, we will examine the merits of the decision and explicate our reasons for affirming the order.

C.R. 4(C) prohibits holding a defendant to answer a criminal charge "for a period in aggregate embracing more than one year," exclusive of delays caused by the defendant. At the time of defendant's notice to take deposition and motion for continuance, some four to six months had already elapsed. The issue as to whether appellee was properly discharged, therefore, turns upon the extent of the delay attributable to the defendant upon his motion for continuance.

Our Supreme Court has held that where delay is caused by the defendant, determination of the extent of the delay attributable to defendant's actions must proceed on a case-by-case basis. Gross v. State, (1972) 258 Ind. 46, 278 N.E.2d 583. Here, a delay of some sixteen months ensued following defendant's motion for a continuance. Assignment of even half of this delay to the State's lassitude would result in a finding that the statutory period elapsed prior to January 7, 1983. 4

We find adequate grounds to support the...

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13 cases
  • Everroad v. State
    • United States
    • Indiana Appellate Court
    • April 15, 1991
    ...of the case on December 11, 1979. This delay of twenty-five (25) days clearly is chargeable to the Everroads. State v. Tomes (1984), Ind.App., 466 N.E.2d 66, 69. On February 27, 1980, a trial date of June 2, 1980 was set. The Everroads filed a motion for continuance and a motion to suppress......
  • Burst v. State, 4-1185A304
    • United States
    • Indiana Appellate Court
    • November 17, 1986
    ...the one year period, and the defendant is not required to take affirmative steps to obtain trial within that period. State v. Tomes (1984), Ind.App., 466 N.E.2d 66, 70. The state argues Burst waived his right to a speedy trial under rule 4(C) by failing to object in January of 1985 when the......
  • Vaughan v. State
    • United States
    • Indiana Appellate Court
    • November 8, 1984
    ...of such delays. Webb v. State, (1983) Ind., 453 N.E.2d 180, 186; Andrews v. State, (1982) Ind., 441 N.E.2d 194, 199; State v. Tomes, (1984) Ind.App., 466 N.E.2d 66, 68. Vaughan argues, however, he was not informed of the plea agreement by his attorney. Thus the delay, if any, caused by the ......
  • Raber v. State
    • United States
    • Indiana Appellate Court
    • October 20, 1993
    ...(1987), Ind.App., 514 N.E.2d 301, 306. Nor was Raber under a duty to object at all before his motion for discharge. See State v. Tomes (1984), 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, ......
  • Request a trial to view additional results

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