Adams v. State, 377S195

Decision Date30 May 1978
Docket NumberNo. 377S195,377S195
Citation376 N.E.2d 482,268 Ind. 434
PartiesCharles Wayne ADAMS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

Harriette Bailey Conn, Public Defender, John W. Bean, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., David Michael Wallman, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Petitioner (Appellant) was convicted of First Degree Murder after a trial by jury in the Grant County Circuit Court, and was sentenced to death. Upon direct appeal from that judgment, his conviction was affirmed, 259 Ind. 64, 271 N.E.2d 425, and upon rehearing Defendant's death sentence was reduced to life imprisonment, 259 Ind. 164, 284 N.E.2d 757.

On August 7, 1974, Defendant filed a pro se "Verified Petition for Writ of Habeas Corpus" in the LaPorte County Circuit Court. On August 19, 1974, the defendant's petition was declared to be a Petition for Post-Conviction Relief, and was ordered transferred to the Grant Circuit Court.

This appeal is from the denial of that petition for post-conviction relief, and the dispositive issue involves the trial court's overruling of Defendant's motion for change of venue from the judge. The trial court committed error by denying the defendant's motion for change of judge, and the judgment below must be reversed.

After receiving notice of the impending transfer of the cause to the Grant Circuit Court, Defendant moved for a change of venue from the judge pursuant to Ind.R.P.C. 1 § 4(b). The motion was file marked August 30, 1974, and the undisputed evidence shows that it was posted on August 26, 1974, by certified mail. By authority of Ind.R.Tr.P. 6(E), Defendant's motion is deemed to have been filed on August 26, 1974.

By an order book entry dated August 30, 1974, the Grant Circuit Court ordered the motion to be held in abeyance pending the receipt of Defendant's petition in that court, which occurred October 17, 1974. Defendant's motion was denied on September 21, 1976, for the following reasons "The Court now finds that the motion for change of venue from the Judge filed by petitioner pro se was not filed within the 10 day period as required by Section 4, of post conviction remedy no. 1, said motion being filed August 30, 1974, and the petition for post conviction remedy being filed with the Clerk of Grant Circuit Court Indiana on August 9, 1974; the Court further finds that the motion for change of venue was not accompanied by certificate of good faith of petitioner's counsel and if the petitioner were acting pro-se he failed to attach said certificate. Motion for change of venue from the Judge denied."

Ind.R.P.C. 1 § 4(b) reads as follows:

"Change of venue from the judge shall be granted when the petitioner files, within ten (10) days of the filing of his petition, an affidavit that the judge has a personal bias or prejudice against petitioner. The affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be accompanied by a certificate of good faith of petitioner's counsel. For good cause shown, the petitioner...

To continue reading

Request your trial
7 cases
  • Mosley v. State, 878S155
    • United States
    • Supreme Court of Indiana
    • June 25, 1979
    ...unfairness of the circumstances where the ten-day period expired before the defendant knew who the judge would be. Adams v. State, (1978) Ind., 376 N.E.2d 482. However, that type of unfairness does not exist in the instant The petitioner argues that he did not know about the ten-day limit s......
  • Ferrier v. State, 979S262
    • United States
    • Supreme Court of Indiana
    • December 9, 1980
    ...v. State, (1978) 269 Ind. 513, 381 N.E.2d 1235. The plain provision of the rule required this motion to be denied. In Adams v. State, (1978) 268 Ind. 434, 376 N.E.2d 482, relied upon by appellant, late filing was sanctioned where good cause therefor was apparent on the face of the record, i......
  • Adams v. State, 27S00-8808-PC-728
    • United States
    • Supreme Court of Indiana
    • July 24, 1991
    ...Grant County for post-conviction relief. A motion for change of judge was denied, and a hearing was held. On appeal, Adams v. State (1978), 268 Ind. 434, 376 N.E.2d 482, this Court remanded the case to the post-conviction court holding that a change of judge should have been granted and dir......
  • Berry v. State, 977S640
    • United States
    • Supreme Court of Indiana
    • May 30, 1978
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT