Barker v. State

• Court: Indiana Supreme Court
• Writing for the Court: ACHOR; LANDIS
• Citation: Barker v. State, 175 N.E.2d 353, 242 Ind. 5 (Ind. 1961)
• Decision Date: 13 June 1961
• Docket Number: No. 30083,30083
• Parties: Roland E. BARKER, Appellant v. STATE of Indiana, Appellee.

Page 353

175 N.E.2d 353

242 Ind. 5

Roland E. BARKER, Appellant v. STATE of Indiana, Appellee.

No. 30083.

Supreme Court of Indiana.

June 13, 1961.

William C. Erbecker, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Richard M. Givan, Deputy Atty. Gen., Indianapolis, for appellee.

ACHOR, Judge.

This is an original action in which petitioner asks permission to file a belated appeal.

This court has heretofore held that in order to sustain a motion for a belated appeal, the following essential elements must be made to appear: One. There must be cause shown to excuse the delay in perfecting a timely appeal and, two, that he has a prima facie meritorious cause for appeal. State ex rel. Casey v. Murray, 1952, 231 Ind. 74, 77, 106 N.E.2d 911.

In this case the attorney for petitioner, as excuse for his failure to perfect a timely appeal, asserts that he was engrossed with other matters of business and that he honestly believes that the motion for new trial was overruled by the trial court on a date subsequent to the date of actual ruling thereon. The mere misunderstanding of counsel as to the law or the facts regarding the time available for appeal is not sufficient cause for granting a belated appeal. See cases cited in Flanagan, Wiltrout & Hamilton's Indiana Trial and Appellate Practice § 2475, p. 20, Comment 2.

Furthermore, in this petition the appellant sets forth no facts with regard to the merits of an appeal except to state: 'Your affiant petitioner respectfully says that the evidence in the...