Boushehry v. State
| Decision Date | 18 October 1993 |
| Docket Number | No. 49A05-9302-CR-50,49A05-9302-CR-50 |
| Citation | 622 N.E.2d 212 |
| Parties | Fred BOUSHEHRY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
William F. Thoms, Jr., Saint Simonsen Thoms & Whitney, Indianapolis, for appellant-defendant.
Pamela Carter, Atty. Gen., Joseph F. Pieters, Deputy Atty. Gen., Office Of Atty. Gen., Indianapolis, for appellee-plaintiff.
Appellant Fred Boushehry attempts to appeal from seven convictions stemming from the killing of two Canadian geese. We are, however, unable to reach the merits of his appeal because there is no final appealable judgment in this case.
As originally filed, the record, although referring to the individual who presided over the case as judge pro tempore, contained nothing to show that the individual had been properly appointed to act as a judge pro tempore. Consequently, this Court issued a writ of certiorari to the Municipal Court Clerk to forward the appropriate pro tempore appointments and a chronological case summary.
We are now in receipt of the items requested from the Clerk. They reflect that on October 13, 1992, due to the absence of Judge Charles Wiles, David Lewis was appointed judge pro tempore of Marion County Municipal Court Room 9 for the morning session of October 14, 1992, by Municipal Court Presiding Judge Evan Dee Goodman. Trial was held in this cause on that date. An appropriate pro tempore appointment sheet provides this information.
The problem lies with the other information provided. David Lewis informs us, through affidavit, that he took the case under advisement and ruled on it on October 23, 1992. The Orders of Judgment of Conviction are also dated October 23, 1992, and signed by Lewis. However, the record is devoid of any indication that David Lewis had been appointed judge pro tempore for any time period on October 23, 1992.
Only a judge may enter an appealable final judgment. 1 Walls v. State (1992), Ind.App., 603 N.E.2d 903. A judge is either the duly elected or appointed judge of the court, or a duly appointed judge pro tempore or special judge. Id. The distinction between a special judge and a judge pro tempore is important. A judge pro tempore is appointed for a specified time period in the absence of the regular judge. Kimball v. State (1985), Ind., 474 N.E.2d 982. A special judge is appointed for the duration of a case. Id.; Schwindt v. State (1992), Ind.App., 596 N.E.2d 936. Had Lewis been a special...
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Floyd v. State
...was an improperly appointed judge and therefore lacked authority and jurisdiction over him. In other cases, e.g., Boushehry v. State (1993), Ind.App., 622 N.E.2d 212, aff'd on rehearing, (1993), 626 N.E.2d 497, trans. denied, the Court of Appeals has raised sua sponte the issue of the autho......
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Harris v. Duckworth
...Appeal as to whether a judge pro tempore retains jurisdiction over a case after her appointment has expired. Compare Boushehry v. State, 622 N.E.2d 212 (Ind. Ct. App. 1993) with Billingsley v. State, 638 N.E.2d 1340 (Ind. Ct. App. 1994). The Indiana Supreme Court held that a judge pro tempo......
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Williams v. State
...by our supreme court resolved the conflict among our districts, demonstrated by our Fifth District's decision in Boushehry v. State (1993), Ind.App., 622 N.E.2d 212, affirmed on rehearing, 626 N.E.2d 497, and our Second District's decision in Billingsley v. State (1994), Ind.App., 638 N.E.2......
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Boushehry v. State
...Both parties petition for rehearing from our opinion dismissing this appeal for lack of a final appealable judgment. Boushehry v. State (1993), Ind.App., 622 N.E.2d 212. We write on rehearing to expand the reasoning behind the Briefly, the facts are that David Lewis was appointed judge pro ......