Boushehry v. State

• Decision Date: 20 December 1993
• Docket Number: No. 49A05-9302-CR-50,49A05-9302-CR-50
• Citation: 626 N.E.2d 497
• Parties: Fred BOUSHEHRY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 497

626 N.E.2d 497

Fred BOUSHEHRY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A05-9302-CR-50.

Court of Appeals of Indiana Fifth District.

Dec. 20, 1993.

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.

BARTEAU, Judge.

ON PETITION FOR REHEARING

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 dismissal.

Briefly, the facts are that David Lewis was appointed judge pro tempore for the morning session of October 14, 1992, in Marion County Municipal Court Room 9. During that session, Lewis heard evidence in this case. Following the presentation of evidence, the matter was taken under advisement. Lewis attempted to enter a valid judgment of conviction on October 23, 1992. It is from that judgment that Boushehry brought his appeal.

The State, in its petition for rehearing, contends that our holding that a judge pro tempore appointed for one court session does not retain jurisdiction on a case is in error, citing Harris v. State (1993), Ind.App., 616 N.E.2d 25, trans. denied. Boushehry, in his petition for rehearing, contends that dismissal is too drastic a remedy and too narrow an interpretation of existing case law and asks this court instead to merely stay consideration of the appeal until the procedural defect can be cured. We disagree with the position taken by the State and decline to grant Boushehry's request for a less drastic remedy.

As we held in the original opinion, only a judge may enter an appealable final judgment and a judge is either the duly elected or appointed judge of the court, or a duly appointed judge pro tempore or special judge. Walls v. State (1992), Ind.App., 603 N.E.2d 903. In this case, because the judgment was not entered by a judge, it is not final and not appealable. Both the State and Boushehry argue that the result we reach here is contrary to the results reached in other cases decided by the Indiana Supreme Court and by this court. For example, in State v. Smith (1973), 260 Ind. 555, 297 N.E.2d 809, our supreme court rejected the defendant's challenge to a post-trial motion being heard by the judge who conducted the trial because at the time the post-trial motion was filed, that person was no longer the regular judge of that court. The supreme court held that pursuant to Ind. Trial Rule 63, the regular judge who conducted the trial had continuing jurisdiction as if he had been appointed a special judge. Similarly, in Needham v. Needham (1980), Ind.App., 408 N.E.2d 562, the First District held that pursuant to the principles underlying T.R. 63, a judge pro tempore has continuing jurisdiction over a case once he begins to hear evidence at trial, as if he had been appointed special judge. Thus, on appeal, the parties could not argue that the judgment was not valid. The First District held the same again in Harris, 616 N.E.2d 25, a case where the properly appointed judge pro tempore accepted the defendant's guilty plea, but was not reappointed as judge pro tempore on the day of sentencing.

Boushehry also points to cases where our supreme court has held that the authority of one who acts as a judge de facto under color of authority cannot be collaterally attacked by the parties. Any objection to irregularities in the appointment of a judge pro tempore must be raised at trial. Survance v. State (1984), Ind., 465 N.E.2d 1076 (on appeal defendant challenged judgment on ground that judge pro tempore entered judgment while regular judge also was present and conducting business); see also Gordy v. State (1974), 262 Ind. 275, 315 N.E.2d 362 (defendant sought reversal of conviction because commissioner entered judgment; challenge to his authority could not be raised for the first time on appeal because he was acting as a judge de facto under color of authority).

We see a major distinction between the posture of this case before us and the cases referred to by the parties. Primarily, in those other cases, a party attempted to challenge the judgment for the first time on appeal, claiming that the acting judge did not have authority to enter...