Biggs v. State, 42A01-8905-CR-176
| Decision Date | 07 December 1989 |
| Docket Number | No. 42A01-8905-CR-176,42A01-8905-CR-176 |
| Citation | 546 N.E.2d 1271 |
| Parties | Kathie BIGGS and Robert Orchard, Defendants-Appellants, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Michael L. Walker, Hart, Bell, Deem, Ewing & Stuckey, Vincennes, for Kathie Biggs.
Terrell Maurer, Kimmell, Funk & Cummings, Vincennes, for Robert Orchard.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
Kathie Biggs and Robert Orchard bring this interlocutory appeal to seek review of the trial court's refusal to dismiss the charges filed against them due to the State's failure to try them within the one (1) year period provided by Indiana Rules of Procedure, Trial Rule 4(C). We reverse.
On March 4, 1988, Biggs and Orchard were charged by information with Dealing in Cocaine 1 and Marijuana, 2 and were arrested on these charges on March 8, 1988. At the initial hearing Biggs and Orchard elected to be represented by the same attorney and a trial date was set for July 18, 1988.
On April 12, 1988, Biggs and Orchard filed a discovery request with the State. On May 18, 1988, the State requested an extension of time in which to comply with the discovery request. The trial court granted the State a fifteen (15) day extension and noted that this time was to be charged against the State.
On July 18, 1988, Biggs and Orchard filed a motion to preclude the testimony of the State's confidential informant after the informant failed to appear for a deposition scheduled for June 28 and the State indicated that the informant would not be available for depositions scheduled for June 29. In the alternative Biggs and Orchard requested that the trial court grant a continuance due to the unavailability of the confidential informant. The record is silent as to whether or not the trial court ever ruled on this motion. However, a pretrial conference was set for July 29, 1988.
On July 22, 1988, the State filed a petition requesting the trial court to certify that the confidential informant was a material witness presently outside the State of Indiana, and the state filed a motion requesting the trial court to set a date for On September 9, 1988, the defendants' counsel filed a motion to withdraw. A hearing was held on the matter on September 26. On September 27 the trial court set the cause for a pretrial conference to be held on September 30, 1989. On that date the defendants' counsel was allowed to withdraw based on a conflict of interest arising out of the defendants' marital problems and Biggs and Orchard were appointed new counsel. A trial date was set for November 14, 1988.
deposing this witness. The trial court granted these requests on July 29 and set the deposition dates for August 22 and 23, 1988. The witness did not appear for these depositions. On September 8, 1988, the State filed a document with the court stating that the confidential informant was arrested in Arizona on September 2, 1988, pursuant to a warrant issued by the State of Indiana, and that the informant was in the custody of Arizona authorities. Furthermore, the informant had waived extradition and was to be returned to Indiana by September 8, 1988.
On October 5, 1988, attorney Terrell Maurer entered his appearance on behalf of Orchard and filed a discovery request and a motion to produce. On October 18 the trial court scheduled another pretrial conference for November 3. On October 21, 1988, Biggs' appointed counsel, John Gregg, filed and was granted a motion to withdraw due to his responsibilities in the State Legislature, and on October 24, Michael Walker was appointed counsel for Biggs. Walker entered his appearance at the November 3 pretrial conference. Also at this conference, the cases were assigned two separate cause numbers and the State was ordered to comply with the pending discovery requests within thirty (30) days. The trial date was continued to January 9, 1989.
On December 28, 1988, the court scheduled yet another pretrial conference for December 30, 1988, at which time the trial court noted that the State had yet to comply with the discovery requests and charged the delay from December 3 to the State. The trial court then "removed the case from the trial docket until such time as the Discovery ahs [sic] been completed." Record at 134.
On April 27, 1989, the State filed responses to the defendants' discovery requests. On May 1, 1989, pursuant to the State's motion, the trial court scheduled a pretrial conference for May 5. On May 3, 1989, the defendants objected to the State's request to set the cause for trial and filed a motion to dismiss based on their contention that due to the State's delay their trials did not take place within the one (1) year provided under Indiana Rules of Criminal Procedure, Trial Rule 4(C). On May 5 the trial court postponed the trial date from May 15, 1989 to May 18, 1989 due to congestion of the court's calendar. The trial court denied the defendants' motions to dismiss on May 10, 1989, and affirmed the May 18 trial date for Biggs and set a trial date of May 23, 1989, for Orchard. Orchard's trial date was set for a later date again due to congestion of the court's calendar. Biggs and Orchard then gained certification pursuant to Indiana Rules of Procedure, Appellate Rule 4(B)(6)(c) for an interlocutory appeal of the trial court's refusal to dismiss the charges pending against Orchard and Biggs based on the State's alleged violation of C.R. 4(C). 3
Did the trial court err in refusing to dismiss the charges pending against Biggs and Orchard?
Biggs and Orchard contend that the charges pending against them should have been discharged by the trial court due to the State's failure to try them within one (1) year as required under C.R. 4(C). The State disputes this contention claiming that the delay was excusable for a number of reasons each of which we will address separately.
C.R. 4(C) reads as follows:
The purpose of this rule is to require the State to bring a criminal defendant to trial within one (1) year or forfeit its right to do so. Schuck v. State (1980), Ind.App., 412 N.E.2d 838, 840. The State's duty to try the defendant within one (1) year is an affirmative duty and the defendant is under no obligation to remind the State of its duty. Id. Under C.R. 4(C) no person shall be held on recognizance or otherwise to answer a criminal charge for more than one year from the date the criminal charge is filed, or from the date the defendant is arrested, whichever comes later. State v. Criminal Court of Marion County (1979), 270 Ind. 687, 689, 389 N.E.2d 21, 23. In the present case Biggs and Orchard were charged on March 4, 1988, but were not arrested until March 8, 1988. Therefore the one-year period provided for in C.R. 4(C) began on March 8, 1988. To be in compliance with the rule, the State would have been obligated to bring Biggs and Orchard to trial by March 8, 1989. However, the final trial date for Biggs was set for May 18, 1989. Therefore, it appears that the State violated the provisions of C.R. 4(C) by setting Biggs' trial date for seventy-one (71) days beyond the one-year period allowed. The final trial date for Orchard was set for May 23, 1989, violating the provisions of C.R. 4(C) by seventy-six (76) days.
However, the State argues that portions of this delay were caused by five (5) factors which serve to excuse the delay. These factors are:
(1) the defendants' July 18, 1988, motion for a continuance;
(2) the unavailability of the confidential informant;
(3) the change in defense counsel;
(4) the defendants' acquiescence in the State's failure to bring them to trial within one (1) year of their arrest; and
(5) the congestion of the trial court's docket.
The defendants charge that the reason the trial was delayed so long was because of the State's failure to comply with the defendants' discovery requests.
The State first claims that Biggs and Orchard should be charged with any delay resulting from their July 18, 1988, motion for a continuance. While it is true that generally a defendant is chargeable with delay occasioned by his own request for a continuance, State v. Tomes (1984), Ind.App., 466 N.E.2d 66, 69; see also Lyons v. State (1982), Ind., 431 N.E.2d 78, 79-80, C.R. 4(C) relieves the State from the duty to bring the defendant to trial within one (1) year only for a delay caused by the defendant's own act. Schuck, 412 N.E.2d at 840. The State characterizes the defendants' July 18, 1989, motion for a continuance as an event brought about by the defendants causing an indefinite delay. The State then urges this court to charge a delay continuing through at least August 22, the day set for deposing the confidential informant, against the defendants. This we will not do.
We first note that the defendants' motion for a continuance was never...
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