Carr v. State

Decision Date27 June 2003
Docket NumberNo. 45A03-0212-CR-418.,45A03-0212-CR-418.
Citation790 N.E.2d 599
PartiesBobby Lee CARR, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

Benjamen W. Murphy, Walter J. Alvarez, P.C., Crown Point, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Bobby Lee Carr, Jr. brings this discretionary interlocutory appeal under Indiana Appellate Rule 14(B) from the trial court's denial of his Motion for Discharge pursuant to Indiana Criminal Rule 4(C). Carr presents a single issue for review, namely, whether the trial court erred when it denied his motion for discharge.

We reverse.

FACTS AND PROCEDURAL HISTORY

On September 24, 2001, the State filed a six-count information against Carr, alleging that he had committed various sex offenses against two children. Specifically, Counts I through V alleged that Carr performed or submitted to unlawful sex acts with L.C., a child at least fourteen years of age but less than sixteen years of age, and Count VI alleged that he performed or submitted to unlawful sex acts with S.C., a child less than fourteen years of age. On or about October 3, 2001, Carr was incarcerated in Illinois, and on October 5, 2001, he was transferred to Lake County, Indiana, and posted bond.1 On October 18, 2001, the court conducted an initial hearing and scheduled an omnibus hearing for December 13, 2001. On Carr's motion, the court rescheduled the omnibus hearing for February 13, 2002.

On January 29, 2002, Carr's counsel moved to withdraw at Carr's request. On February 13, 2002, the court granted the motion to withdraw and, on that same date, new counsel entered an appearance on Carr's behalf. Once again, upon Carr's request, the court reset the omnibus hearing for March 21, 2002. On March 21, 2002, the court scheduled a jury trial on all six counts contained in the information for September 30, 2002.

On September 25, 2002, five days prior to trial, Carr filed his Motion for Separate Trials, wherein he requested that the court sever Counts I through V from Count VI. On September 26, 2002, the State notified the court that it had no objection to Carr's motion. On September 27, 2002, the State informed the court of its preference to proceed to trial on Count VI, and Carr had no objection to proceeding to trial on that count. That same day, the court granted Carr's motion for separate trials.

On September 30, 2002, the parties proceeded to trial on Count VI, and on October 3, 2002, the jury found Carr guilty as charged. The trial court scheduled Carr's sentencing hearing for November 8, 2002.

On November 8, 2002, Carr moved for discharge and alleged that the State had failed to try him on Counts I through V within one year. That same date, the court scheduled Carr's jury trial on those remaining counts for November 12, 2002. Following a hearing, the trial court denied Carr's motion for discharge and issued the following findings:

1. Counts I through V were, in fact, set for trial within the one (1) year requirement.

2. On September 25, 2002, five (5) days before the trial, the defendant moved for a separate trial. On September 27, 2002, the motion for separate trial was granted.

3. The defendant had been charged on September 24, 2001. Benjamin [sic] Murphy has been defendant's attorney since February 13, 2002.

4. The defendant's delay in filing a motion for separate trials caused the issue of the remaining counts not being tried within one (1) year.

5. The defendant continued the matter several times causing delay of 98 days before the trial was set.

The Court finds the defendant's Criminal Rule 4 rights were not violated. Upon Carr's request, the court certified the issue for interlocutory appeal. This court accepted jurisdiction of the appeal on January 21, 2003.

DISCUSSION AND DECISION

Carr contends that the court erred when it denied his motion for discharge on Counts I through V of the information. Specifically, he asserts that the trial court erred when it attributed periods of delay to him as a result of: (1) his two motions to continue the omnibus hearing; and (2) his motion to have separate trials. Carr contends that because those periods of delay are not attributable to him, he is entitled to discharge under Criminal Rule 4(C) as a result of the State's failure to bring him to trial on those charges within one year from the date of his arrest.

The right of an accused to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and by Article I, Section 12 of the Indiana Constitution. Clark v. State, 659 N.E.2d 548, 551 (Ind.1995). This "fundamental principle of constitutional law" has long been zealously guarded by our courts. Id. (quoting Castle v. State, 237 Ind. 83, 143 N.E.2d 570, 572 (1957)). To this end, the provisions of Indiana Criminal Rule 4 implement the defendant's speedy trial right. Id. Specifically, Criminal Rule 4(C) provides 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[.]

Under this rule, a defendant may seek and be granted a discharge if he is not brought to trial within the proper time period. State v. Hurst, 688 N.E.2d 402, 407 (Ind.1997). However, if a defendant seeks or acquiesces in a delay that results in a trial date beyond the one-year limit, the time limitations set by Criminal Rule 4 are extended by the length of such delays. Id. (quotations and citation omitted). Again, there are only two periods of delay disputed in this case: (1) the 98 days of delay caused by Carr's two motions to continue the omnibus hearing; and (2) the delay caused by Carr's motion for separate trials. We address Carr's arguments regarding those periods of delay in turn.2

I. Motions to Continue Omnibus Hearing

Carr first asserts that the trial court erred when it charged 98 days of delay to him as a result of his two motions to continue the omnibus hearing. In particular, Carr contends that because he requested and was granted those continuances before the court had set a trial date, no delay should be attributable to him. We must agree.

Indiana courts have stated that a defendant's request or agreement to continue an omnibus hearing, prior to the setting of a trial date, does not result in delay chargeable to that defendant under Criminal Rule 4. Hurst, 688 N.E.2d at 407; Morrison v. State, 555 N.E.2d 458, 461 (Ind. 1990); State ex rel. O'Donnell v. Cass Superior Court, 468 N.E.2d 209, 211 (Ind. 1984); Ritchison v. State, 708 N.E.2d 604, 606 (Ind.Ct.App.1999),trans. denied; Nance v. State, 630 N.E.2d 218, 220 (Ind. Ct.App.1994),aff'd on reh'g, 636 N.E.2d 1292 (1994); Harrington v. State, 588 N.E.2d 509, 511 (Ind.Ct.App.1992); Solomon v. State, 588 N.E.2d 1271, 1272 (Ind. Ct.App.1992). Our supreme court first addressed this issue in State ex rel. O'Donnell. In that case, the State alleged that the defendant was responsible for delay following the parties' agreement to continue the omnibus hearing. 468 N.E.2d at 210-11. The defendant, however, alleged that no delay should be charged to him, even though he acquiesced in the continuance, because no trial date had been established when he agreed to the continuance. Id. at 211. The court rejected the State's position and agreed with the defendant:

In the case at bar, it was the action of the State which resulted in the long delay in this relatively simple matter. [Defendant] did notify the court within two days of the setting of a trial date that the date was beyond the rule.... We believe he has done all that is required of a defendant. 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 [Criminal Rule] 4(C). A defendant in that situation can only assume that when a trial date is finally set it will conform to the limitations of the rule. If the court then sets a date beyond the boundaries of the rule, a defendant has a duty to notify the court of its error. In the case at bar, [the defendant] did, in fact, notify the court. The purpose of the rule can only be guaranteed by the discharge of [the defendant] in the case at bar.

Id. (emphasis added).3

Thereafter, in Morrison, 555 N.E.2d at 461, our supreme court addressed the same question but under slightly different facts. Unlike in State ex rel. O'Donnell where the defendant agreed to continue the hearing, the defendant in Morrison moved to continue the omnibus hearing prior to the setting of a trial date. The court, discussing whether that delay was attributable to the defendant in that case, stated in relevant part:

The Court of Appeals attributed the first delay ... to the defendant because his motion to continue the omnibus hearing delayed the setting of the trial date and hence the ultimate trial date. This comports with Justice DeBruler's dissent in State ex rel. O'Donnell[ ]. The defendant correctly now claims that the treatment of this delay contravenes State ex rel. O'Donnell. However, in his motion for discharge and at its hearing, the defendant conceded the 39-day period. The period is thus properly attributed to the defendant.

555 N.E.2d at 461 (emphasis in original) (internal citation omitted). Thereafter, relying on the decisions in State ex rel. O'Donnell and Morrison, this court has repeatedly stated that a defendant's motion to continue an omnibus or pre-trial hearing, prior to the setting of a trial date, ...

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3 cases
  • Cook v. State
    • United States
    • Indiana Supreme Court
    • June 30, 2004
    ...to the defendant unless a trial date had already been set. State v. Hurst, 688 N.E.2d 402, 406-08 (Ind.1997); Carr v. State, 790 N.E.2d 599, 602-06 (Ind.Ct.App.2003); Nance v. State, 630 N.E.2d 218, 220-21 (Ind.Ct.App.1994); Harrington v. State, 588 N.E.2d 509, 511 (Ind.Ct.App.1992); Miller......
  • Cook v. State, 33A01-0302-CR-75.
    • United States
    • Indiana Appellate Court
    • December 2, 2003
    ...with a continuance for which he moves or to which he agrees before a trial date is set. Citing our recent decision in Carr v. State, 790 N.E.2d 599 (Ind. Ct.App.2003) the dissent agrees with We believe Cook has misread the holdings in the cases he cites concerning the effect of continuances......
  • Crim v. State
    • United States
    • Indiana Appellate Court
    • January 9, 2013
    ...1. This represents the delay between March 17, 2010, and April 20, 2010. 2. We observe that Crim's attorney cited Carr v. State, 790 N.E.2d 599 (Ind. Ct. App. 2003), to the trial court for the proposition that a request for a continuance is charged against the defendant only if a trial date......

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