Frisbie v. State

Citation687 N.E.2d 1215
Decision Date10 November 1997
Docket NumberNo. 45A03-9704-CR-126,45A03-9704-CR-126
PartiesBrad E. FRISBIE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtCourt of Appeals of Indiana
OPINION

HOFFMAN, Judge.

Appellant-defendant Brad E. Frisbie filed an interlocutory appeal in which he appeals the trial court's denial of his motion to dismiss, pursuant to Ind.Crim.Rule 4(C). The facts relevant to the appeal follow.

On December 15, 1994, the State filed an information against Frisbie charging him with residential entry, as a Class D felony, and invasion of privacy, as a Class B misdemeanor. Frisbie had already been arrested. On March 7, 1995, Frisbie was arraigned. At the arraignment, inter alia, a mandatory disposition conference (MDC) was set for September 7, 1995. On that day, Frisbie, by counsel, waived his initial hearing, requested discovery, and requested that the court set an omnibus hearing/MDC. The hearing was set for December 7, 1995. When Frisbie appeared before the trial court on December 7, 1995, he requested a continuance, and the trial judge set the hearing for February 8, 1996. On that day, Frisbie again requested a continuance, and a pretrial conference was set for June 6, 1996. On June 6, 1996, Frisbie requested another continuance, and the pretrial conference was reset for July 11, 1996. On that day, Frisbie requested yet another continuance, and the trial court reset the pretrial conference for January 14, 1997, and set a bench trial for March 19, 1997.

Thereafter, on July 23, 1996, Frisbie requested a continuance, and the trial court reset the pretrial conference for October 16, 1996. On October 21, 1996, Frisbie requested a continuance, and the trial court again reset the pretrial conference for January 14, 1997, and the bench trial for March 19, 1997. On January 14, 1997, Frisbie requested his final continuance, and the pretrial conference was reset for February 11, 1997. On February 11, 1997, Frisbie filed his motion for discharge contending that the State failed to bring him to trial within one year of his arrest as required by Crim.R. 4(C). A hearing was held, and the motion was denied on February 18, 1997. Frisbie now appeals.

The sole issue for our review is whether the trial court erred in denying Frisbie's motion to dismiss under Crim.R. 4(C).

Frisbie argues that he is entitled to discharge because he was not brought to trial within one year, and he is not chargeable with any delay. Crim.R. 4(C) reads in relevant part 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[.] ...

Simply put, a defendant is responsible for any delay caused by his action, including seeking or acquiescing in any continuance. Wheeler v. State, 662 N.E.2d 192, 193 (Ind.Ct.App.1996). If a delay is caused by the defendant's own motion or action, the one-year time limit is extended accordingly. Id.

Frisbie contends that, although he filed numerous motions for continuance which resulted in subsequent delays, the State still failed to bring him to trial within the statutory prescribed limit of one year. According to Frisbie, none of the delays occasioned by his request for continuances were attributable to him because continuances prior to the setting of trial are charged to the State.

In support of his argument that the State should be charged for the delay caused by his continuances, Frisbie cites State ex rel. O'Donnell v. Cass Superior Ct., 468 N.E.2d 209, 211 (Ind.1984) and Morrison v. State, 555 N.E.2d 458, 461 (Ind.1990), trans. denied, for the proposition that for Crim.R. 4(C) purposes, a defendant is not charged with a continuance for which he moves or to which he agrees before a trial date is set. In O'Donnell, our supreme court determined that an agreed continuance, which occurred prior to the trial setting, was not attributable to the defendant because the defendant did not realize at that point that the trial date would be set beyond the boundaries of the rule, and foremost, because the defendant notified the trial court within two days of the trial setting that the date was outside the rule's time frame. In dictum, the majority states, "When a defendant has agreed to a continuance prior to the setting of any trial date, those days shall not be attributed to the defendant for the purposes of Ind.R.Cr.P. 4(C)." O'Donnell, 468 N.E.2d at 211. (Emphasis added.) In Morrison, our supreme court found that the delay prior to a trial setting was properly charged to the defendant, inasmuch as the defendant had conceded accountability of that particular time period. Morrison, 555 N.E.2d at 461. A careful review of the language of these two cases discloses that neither supports a conclusion that the defendant may request continuances without accountability.

Here, the information charging Frisbie with residential entry and invasion of privacy was filed December 15, 1994. Thus, the one-year period within which the State could prosecute Frisbie under Crim.R. 4(C) expired on December 15, 1995, assuming that he was not responsible for any delay. The record reveals, however, that starting December 7, 1995, Frisbie sought several continuances. At least two of the continuances were sought because Frisbie changed lawyers. These delays were chargeable to Frisbie. See Andrews v. State, 441 N.E.2d 194, 199 (Ind.1982). The other continuances were at the request of Frisbie's counsel. In all, Frisbie requested seven continuances that lasted from December 7, 1995 until February 11, 1997. On February 11, 1997, Frisbie filed his motion to dismiss.

In sum, the record discloses that Frisbie was responsible for the delay starting December 7, 1995. This delay was extended on February 8, 1996; June 6, 1996; July 11, 1996; July 23, 1996; and January 14, 1997. This extended delay totaled 396 days. Accordingly, the new deadline was pushed back 396 days from January 14, 1997, to February 13, 1998. Therefore, the trial court properly denied Frisbie's motion for discharge.

Affirmed.

GARRARD, J., concurs.

DARDEN, J., dissents with separate opinion.

DARDEN, Judge, dissenting.

I respectfully dissent. I first note two facts not discussed in the majority opinion and which I find particularly troublesome Frisbie was charged on December 15, 1994, but the next day the trial court scheduled his arraignment nearly three months hence--on March 7, 1995; and Frisbie's written request for a jury trial appears to have been simply ignored and the matter set for bench trial. These facts aside, I cannot agree with the majority's conclusion that Frisbie's motion for discharge...

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14 cases
  • Cook v. State
    • United States
    • Indiana Supreme Court
    • June 30, 2004
    ..."[i]f a delay is caused by the defendant's own motion or action, the one-year time limit is extended accordingly." Frisbie v. State, 687 N.E.2d 1215, 1217 (Ind.Ct.App.1997) (citation omitted), trans. denied, 698 N.E.2d 1190 (Ind.1998); see also Andrews v. State, 441 N.E.2d 194, 199 There is......
  • Pelley v. State
    • United States
    • Indiana Appellate Court
    • April 8, 2008
    ...by the defendant's own motion or action, the one-year time limit is extended accordingly." Id. at 1066 (quoting Frisbie v. State, 687 N.E.2d 1215, 1217 (Ind.Ct.App.1997), reh'g denied, trans. Pelley argues that his rights under Ind. Criminal Rule 4(C) were violated by the 1430-day delay bet......
  • McCloud v. State
    • United States
    • Indiana Appellate Court
    • December 20, 2011
    ...by the defendant's own motion or action, the one-year time limit is extended accordingly.’ ” Id. at 793 (quoting Frisbie v. State, 687 N.E.2d 1215, 1217 (Ind.Ct.App.1997), trans. denied (1998)). Before determining whether Criminal Rule 4(C) was violated, we must first determine whether the ......
  • State v. Black
    • United States
    • Indiana Appellate Court
    • May 10, 2011
    ...“[i]f a delay is caused by the defendant's own motion or action, the one-year time limit is extended accordingly.” Frisbie v. State, 687 N.E.2d 1215, 1217 (Ind.Ct.App.1997), trans. denied (1998) (citation omitted). A defendant has no obligation to remind the trial court of the State's duty,......
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