818 N.E.2d 26 (Ind.App. 2004), 68A04-0402-CR-77, Werner v. State

Docket Nº68A04-0402-CR-77.
Citation818 N.E.2d 26
Party NamePhilip M. WERNER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Case DateNovember 22, 2004
CourtCourt of Appeals of Indiana

Page 26

818 N.E.2d 26 (Ind.App. 2004)

Philip M. WERNER, Appellant-Defendant,

v.

STATE of Indiana, Appellee-Plaintiff.

No. 68A04-0402-CR-77.

Court of Appeals of Indiana

November 22, 2004

Transfer Denied Jan. 27, 2005.

Page 27

Dale W. Arnett, Winchester, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Judge.

Appellant-defendant Philip M. Werner appeals from the trial court's interlocutory order denying his motion to dismiss. Specifically, he contends that the trial court erred in failing to find a violation of Indiana Rule of Criminal Procedure 4(C) where there were multiple delays between his arrest on August 30, 2000, and the original bench trial date set for January 3, 2002. Finding that Werner did not object to the trial date in a timely fashion and has therefore waived this argument, we affirm.

FACTS

The facts most favorable to the judgment are that Werner was arrested on August 30, 2000. The State charged him

Page 28

with Possession of Marijuana, 1 a class A misdemeanor, on September 7, 2000. Werner appeared for the initial hearing in Randolph County on September 19, 2000, and requested a continuance of the hearing. The trial court rescheduled the hearing to October 10, 2000, when it again continued the hearing until November 9, 2000. The record is silent as to why the hearing was continued at that time. On November 8, 2000, Werner was arrested in Wayne County on unrelated charges. On November 9, 2000, the trial court continued the hearing again until November 21, 2000, due to court congestion. Also on November 9, 2000, an individual called the Randolph County Clerk's Office to advise the office that Werner was incarcerated in the Wayne County Jail.

On November 21, 2000, the trial court reset the initial hearing for January 2, 2001, and the record is silent as to why the hearing was again continued. On January 2, 2001, Werner failed to appear for the initial hearing, and the trial court continued the hearing until January 30, 2001. On January 8, 2001, Werner's bonding company called the bailiff and informed him that Werner was in the Wayne County Jail and "would probably be there for awhile." Appellant's App. p. 88. On January 9, 2001, the trial court appointed pauper counsel for Werner. The record is silent regarding the scheduled hearing on January 30, 2001. Werner was incarcerated in Wayne County until May 23, 2001, when he was released.

On October 26, 2001, the trial court continued the initial hearing until November 2, 2001, at which time Werner filed a waiver of the initial hearing and the trial court set the omnibus date and bench trial for January 3, 2002. Werner did not object to the trial date at that time. Due to further delays, the trial did not occur as scheduled on January 3, 2002.

On March 31, 2003, Werner filed a motion to dismiss pursuant to Indiana Rule of Criminal Procedure 4(C), and on December 23, 2003, the trial court denied Werner's motion. Werner now appeals from the trial court's interlocutory order denying his motion to dismiss. 2

DISCUSSION AND DECISION

Werner argues that the trial court erred in denying his motion to dismiss pursuant to Rule 4(C). Specifically, he contends that because he provided notice, albeit oral, to the Randolph County Clerk's Office that he was incarcerated in Wayne County when he failed to appear on January 2, 2001, that he should not be charged with the delay that occurred due to his Wayne County incarceration.

As we consider Werner's argument, we note that we review a trial court's denial of a motion to dismiss for an abuse of discretion. Johnson v. State, 774 N.E.2d 1012, 1014 (Ind.Ct.App.2002). In reviewing the trial court's decision for an abuse of discretion, we reverse only where the decision is clearly against the logic and effect of the facts and circumstances. Id.

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. Cole v. State, 780 N.E.2d 394, 396 (Ind.Ct.App.2002), trans. denied. The provisions of Indiana Rule of Criminal Procedure 4 provide further protection to a defendant's right to a speedy trial. Id. Specifically, Rule 4(C)...

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24 practice notes
  • 959 N.E.2d 879 (Ind.App. 2011), 49A05-1102-CR-77, McCloud v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • December 20, 2011
    ...Rule 4 has no application to a defendant who is incarcerated in a foreign jurisdiction. 933 N.E.2d at 529. [6] In Werner v. State, 818 N.E.2d 26 (Ind.Ct.App.2004), trans. denied (2005), where the defendant faced charges in one Indiana county when he was arrested and incarcerated in another,......
  • 995 N.E.2d 19 (Ind.App. 2013), 87A01-1209-CR-431, Marchand v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • September 25, 2013
    ...where he acquiesced to the delay and agreed to a new trial date outside the parameters of Criminal Rule 4(C)); Werner v. State, 818 N.E.2d 26, 32 (Ind.Ct.App.2004) (affirming the trial court's interlocutory order denying defendant's Criminal Rule 4(C) motion for discharge where defendant wa......
  • McCarthy v. State, 090121 INCA, 20A-CR-1892
    • United States
    • Indiana Court of Appeals of Indiana
    • September 1, 2021
    ...is required to provide the State and the trial court with "formal written notice of his incarceration[, ]" 818 N.E.2d 26, 31 (Ind.Ct.App. 2004), arguing that, in this case, McCarthy has failed to do so. The State points to the fact that, while private coun......
  • 971 N.E.2d 1274 (Ind.App. 2012), 59A01-1108-CR-330, Peters v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • July 31, 2012
    ...his right to a speedy trial. We review a trial court's denial of a motion to dismiss for an abuse of discretion. Werner v. State, 818 N.E.2d 26, 28 (Ind.Ct.App.2004), trans. denied. We will find an abuse of discretion and reverse only where the trial court's decision was clearly against the......
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24 cases
  • 959 N.E.2d 879 (Ind.App. 2011), 49A05-1102-CR-77, McCloud v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • December 20, 2011
    ...Rule 4 has no application to a defendant who is incarcerated in a foreign jurisdiction. 933 N.E.2d at 529. [6] In Werner v. State, 818 N.E.2d 26 (Ind.Ct.App.2004), trans. denied (2005), where the defendant faced charges in one Indiana county when he was arrested and incarcerated in another,......
  • 995 N.E.2d 19 (Ind.App. 2013), 87A01-1209-CR-431, Marchand v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • September 25, 2013
    ...where he acquiesced to the delay and agreed to a new trial date outside the parameters of Criminal Rule 4(C)); Werner v. State, 818 N.E.2d 26, 32 (Ind.Ct.App.2004) (affirming the trial court's interlocutory order denying defendant's Criminal Rule 4(C) motion for discharge where defendant wa......
  • 56 N.E.3d 71 (Ind.App. 2016), 08A02-1508-CR-1278, Arion v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • June 22, 2016
    ...whereabouts to be relevant for Rule 4(C) purposes.5 Feuston v. State, 953 N.E.2d 545 (Ind.Ct.App. 2011); Werner v. State, 818 N.E.2d 26 (Ind.Ct.App. 2004). These cases stand for the proposition that " [u]nnecessary delays will not be deterred by granting discha......
  • McCarthy v. State, 090121 INCA, 20A-CR-1892
    • United States
    • Indiana Court of Appeals of Indiana
    • September 1, 2021
    ...is required to provide the State and the trial court with "formal written notice of his incarceration[, ]" 818 N.E.2d 26, 31 (Ind.Ct.App. 2004), arguing that, in this case, McCarthy has failed to do so. The State points to the fact that, while private coun......
  • Request a trial to view additional results

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