Anderson v. State, 681S172
| Decision Date | 31 August 1982 |
| Docket Number | No. 681S172,681S172 |
| Citation | 439 N.E.2d 558 |
| Parties | Roger William ANDERSON, Jr., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, Kenneth M. Stroud, Sp. Asst. Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted after trial by jury of Attempted Theft, Ind.Code Secs. 35-41-5-1; 35-43-4-2 (Burns 1979) and of being an Habitual Offender, Ind.Code Sec. 35-50-2-8 (Burns 1979) and sentenced to thirty-two (32) years imprisonment. This direct appeal requires us to address two issues:
(1) Whether the trial court erred in denying Defendant's motion for discharge.
(2) Whether the trial court erred in denying Defendant's motion to dismiss the habitual offender charge.
* * *
Defendant first contends that he was tried subsequently to the expiration of the seventy (70) day period of limitation fixed by Ind.R.Crim.P. 4(B)(1). The relevant dates and occurrences are summarized as follows:
July 7, 1980 Amended information for
Attempted Theft filed
July 18, 1980 Defendant arraigned on
Attempted Theft charge
State files "Request for
Sentencing as an Habitual
Offender."
July 23, 1980 Defendant filed Motion for
Early Trial and Motion to
Strike Habitual Offender
pleading
July 28, 1980 Trial set for September 15
1980
September 8, 1980 State moved for and was
granted a continuance
because of a congested
calendar.
October 6, 1980 Trial set for November 3, 1980.
October 14, 1980 Defendant objected to trial
setting.
November 5, 1980 Defendant filed motion for
discharge, denied; jury
selected and sworn.
November 6, 1980 Trial commenced.
The trial date of November 6, 1980, was clearly more than seventy (70) days subsequent to the date Defendant's early trial motion was filed. The State notes that Defendant's motion to strike was never directly ruled upon, but was implicitly denied on November 6, 1980, when the State was permitted to file its "First Amended Request for Sentencing as Habitual Offender." The State asserts the pendency of Defendant's motion to strike resulted in forty-seven (47) days of delay chargeable to him from July 23, 1980, the date the motion was filed, until September 8, 1980, the date the State obtained a continuance, which delayed the case until the trial date.
In Little v. State, (1981) Ind., 415 N.E.2d 44 we stated:
Defendant seeks to avoid the impact of Little by asking us to rule that Ind. R. Crim. P. 4(F), which extends the time limitations in the rule by the amount of delay caused by Defendant's act, extends the limitations only by the amount of time reasonably necessary for the trial court to rule upon the defendant's motion. He reasons that his motion to strike the State's insufficient pleading could have been ruled upon in a day and that, while the ten (10) days delay in Little was reasonable, forty-seven (47) days is not.
We cannot accept this proposition. It is not supported by the language of Ind. R. Crim. P. 4(F) (in pertinent part):
"When a continuance is had on motion of the defendant, or delay in trial is caused by his act, any time limitation contained in this rule shall be extended by the amount of the resulting period of such delay caused thereby."
It also ignores the "lazy judge" rule, Ind. R. Tr. P. 53.1(A) which gives the trial court thirty (30) days to rule upon the motion regardless of whether or not the motion could conceivably be disposed of in a day. Once the thirty (30) days had elapsed, Ind. R. Tr. P. 53.1(B) would have required Defendant's affirmative act of filing a praecipe to invoke the rule. Defendant did nothing to invoke the rule or to obtain an early ruling on his motion. He allowed the motion to pend, resulting in forty-seven (47) days delay chargeable to him under Ind. R. Crim. P. 4(F). Thus, the State had one hundred seventeen (117) days from July 23, 1980, or until November 17, 1980, to bring Defendant to trial. We find no error in the trial court's denial of the motion to discharge.
Since we have found that Defendant was timely brought to trial, we need not address his assignments of error concerning the trial court's having granted the State's September 8, 1980 motion for continuance.
Defendant raises three assignments of error concerning the habitual offender charge. We find that one of them merits relief.
Defendant argues that the State's "Request for Sentencing as an Habitual Offender" is not in the form required by Ind. Code Sec. 35-3.1-1-2(b) (Burns 1979) which requires a sworn information. The "request" contains nothing even remotely resembling the verification required by statute:
In his July 23, 1980, motion to strike Defendant claimed that the pleading was insufficient because it merely charged that he had accumulated two or more prior unrelated felony convictions. Both arguments have merit.
While the habitual offender charge is not a separate offense under the penal code, it is subject to the rules governing the charging of criminal offenses. To invoke the enhanced penalty the State must charge the prior unrelated convictions " * * * on a page separate from the rest of the charging instrument; * * *." Ind. Code Sec. 35-50-2-8(a) (emphasis added). Thus, the habitual offender count is part of the charging instrument and the allegations thereof must be sworn to by someone. Ind. Code Sec. 35-3.1-1-2(b).
Additionally, the State's request is...
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