Bott v. State, No. 48A02-0602-CR-97 (Ind. App. 9/8/2006), 48A02-0602-CR-97.
| Decision Date | 08 September 2006 |
| Docket Number | No. 48A02-0602-CR-97.,48A02-0602-CR-97. |
| Parties | TIMOTHY K. BOTT, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
WILLIAM BYER, JR., Byer & Byer, ATTORNEY FOR APPELLANT.
Anderson, Indiana, Attorney General of Indiana, STEVE CARTER, KELLY A. MIKLOS, Deputy Attorney General, Indianapolis, Indiana, ATTORNEYS FOR APPELLEE.
Appellant-Defendant Timothy K. Bott ("Bott") appeals the trial court's denial of his motion for discharge pursuant to Criminal Rule 4(c). We reverse.
Bott has raised one issue which we restate as whether Bott should be discharged pursuant to Criminal Rule 4(c) where his trial was conducted three and a quarter years after he was initially charged and where he objected timely to the trial setting.
On July 21, 2002, Bott drove without a secured seatbelt and turned in front of a vehicle. Officer Chris Christian ("Officer Christian") detained Bott and noticed that Bott smelled of alcohol and slurred his speech. Officer Christian conducted three field sobriety tests, all of which Bott failed. Officer Christian placed Bott under arrest. On July 22, 2002, the State charged Bott in Anderson City Court with operating a vehicle while intoxicated,1 lacking financial responsibility,2 having an open container in the passenger compartment,3 moving unsafely and without signal from lane to lane,4 and failing to use a passenger restraint in the front seat.5 On August 20, 2002, the State moved to dismiss all five counts.
On November 22, 2002, the State charged Bott with operating a vehicle while intoxicated as a Class C misdemeanor6 and alleged he is a habitual substance offender.7 At the initial hearing on January 24, 2003, Bott failed to appear because he was incarcerated. His arrest in this case constituted a probation violation on unrelated charges in the same county. As a result, the court issued an arrest warrant for Bott. Bott admitted that his uncle received the warrant, but his uncle failed to inform him, assuming that it concerned the unrelated charges for which he was incarcerated at the time. On April 30, 2003, Bott appeared in court, and explained his prior absence. On May 9, 2003, the State amended its information to include a count for operating a vehicle while intoxicated as a Class D felony.8
On Tuesday,9 October 21, 2003, at the last of three pre-trial conferences, the parties appeared and requested a trial date. The Chronological Case Summary reflects that on that date, the trial court set trial for April 1, 2004.
On December 8, 2003, Bott moved to dismiss the charges, alleging a violation of Criminal Rule 4(c). At the conclusion of a hearing on January 20, 2004, the trial court denied Bott's motion to dismiss. Meanwhile, the trial remained scheduled to occur on April 1, 2004.
On February 17, 2004, Bott moved for certification of an interlocutory order on the motion to dismiss. The trial court granted certification. Prior to a ruling by this Court on the interlocutory order, the trial court reset Bott's trial due to congestion of the court calendar. On May 11, 2004, this Court declined to accept jurisdiction of the interlocutory appeal. The trial court twice more reset the trial date due to congestion. Ultimately, the case was tried on October 18, 2005. In absentia, Bott was found guilty as charged and adjudicated a habitual substance offender. Bott received consecutive sentences of three and five years, three of which were suspended. He now appeals.
We review the denial of a motion to dismiss for an abuse of discretion. Murphy v. State, 837 N.E.2d 591, 593 (Ind. Ct. App. 2005). "In so reviewing a trial court's decision, we reverse only where the decision is clearly against the logic and effect of the facts and circumstances." Id.
Bott contends that the passage of 1184 days (approximately three and a quarter years) between the initial filing of charges and his trial violated Criminal Rule 4(c).10 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. U.S. CONST. amend. VI, and IND. CONST. art. I, § 12. "This `fundamental principle of constitutional law' has long been zealously guarded by our courts." Cole v. State, 780 N.E.2d 394, 396 (Ind. Ct. App. 2002), trans. denied (quoting Castle v. State, 237 Ind. 83, 143 N.E.2d 570, 572 (1957)). Indiana Criminal Rule 4(c) codifies and further protects this right.
No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time. Any defendant so held shall, on motion, be discharged.
The purpose of Criminal Rule 4(c) is to facilitate early trials and not to discharge defendants. Pond v. State, 808 N.E.2d 718, 722 (Ind. Ct. App. 2004), trans. denied (citing State v. Hurst, 688 N.E.2d 402, 408 (Ind. 1997), overruled on other grounds). The burden is upon the State, not the defendant, to bring a defendant to trial within one year. Rust v. State, 792 N.E.2d 616, 618 (Ind. Ct. App. 2003) (citing Hurst, 688 N.E.2d at 408), trans. vacated and denied. Nonetheless, the defendant does have a duty to argue timely that a particular trial date, once set, would violate Criminal Rule 4(c). State of Indiana ex rel. Michael Shane Bramley, Relator v. Tipton Circuit Court, 835 N.E.2d 479, 481 (Ind. 2005) (citing Vermillion v. State, 719 N.E.2d 1201, 1204 (Ind. 1999)). This achieves the desired result that trial courts, once notified that a particular date might violate Criminal Rule 4(c), would still have an opportunity to secure an earlier trial date.
We initially observe that the State's dismissal of the charges on August 20, 2002 tolled, but did not reset, the one-year computation until the new charges were filed on November 22, 2002. See Sweeney v. State, 704 N.E.2d 86 (Ind. 1998). See also Stinson v. State, 797 N.E.2d 352 (Ind. Ct. App. 2003). Accordingly, the dismissal tolled the one-year computation for 94 days.
By the rule's plain language, neither delays caused by Bott, nor continuances of trial based upon findings of congestion are to be included in the one-year computation. Ind. Crim. Rule 4(c). See also Cook v. State, 810 N.E.2d 1064, 1067 (Ind. 2004) () and Covelli v. State, 579 N.E.2d 466 (Ind. Ct. App. 1991) ().
The State alleges that Bott caused a series of delays in the course of the prosecution. First, Bott failed to appear at a hearing on January 24, 2003. At the time, Bott was incarcerated because his arrest in this case had constituted a probation violation on unrelated charges in the same county. The trial court issued a warrant for his arrest. He later testified that the warrant was delivered to the correct address, but that his uncle had not informed him of it, assuming that the warrant concerned the charges for which he was incarcerated. Meanwhile, the State proceeded as if Bott had been served.
The State contends that it should not be charged for this time, arguing that it lacked actual knowledge of Bott's incarceration, and that knowledge of Bott's whereabouts should not be imputed to the State simply because he was incarcerated in the same county. Bott, however, alleges that the county prosecutor's office should be held responsible for understanding whom it has incarcerated.
For situations in which the defendant is incarcerated for unrelated charges arising in another county, "`arrest' for purposes of Ind.R.Crim.P. 4(A) and (C) does not occur until his return is ordered by the court wherein the second charges have been filed." Rust, 792 N.E.2d at 618, 619 (citing Landrum v. State, 428 N.E.2d 1228, 1230 (Ind. 1981)). Where a prosecution was "midstream," however, two cases give guidance on what constitutes notice to the prosecution of defendant's incarceration such that the Criminal Rule 4(c) clock begins again to tick.
In Rust, the defendant was arrested in Hancock County and released on bond. He then was arrested in Marion County and appeared at the initial hearing. He failed to appear for subsequent hearings in both counties. Rust surrendered himself in Hancock County, filing a notice of surrender in Marion County. This Court distinguished Landrum, noting that the Marion County case was "midstream." Id. at 620. Rust held that "once the trial court and the State were notified via the Notice of Surrender where Rust was incarcerated, the State was obligated to proceed with the case in a timely manner." Id.
In contrast, this Court considered telephone calls inadequate notice for purposes of re-starting the Criminal Rule 4(c) clock. In Werner v. State, the defendant was arrested and appeared at...
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