Burton v. State, 30475
| Decision Date | 17 November 1964 |
| Docket Number | No. 30475,30475 |
| Citation | 202 N.E.2d 165,246 Ind. 197 |
| Parties | Alvin BURTON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Robert S. Baker, Public Defender, Sid M. Cleveland, Deputy Public Defender, Indianapolis, for appellant.
Edwin K. Steers, Atty. Gen., of Indiana, David S. Wedding, Deputy Atty. Gen., for appellee.
Appellant has taken this appeal from the lower court's judgment denying his petition for writ of error coram nobis wherein appellant sought to set aside his conviction for grand larceny entered some five years previously.
Appellant's principal contention is that he was heretofore represented by counsel and was allowed by such counsel to enter a plea of guilty to larceny when the undisputed facts showed he could not have been guilty of larceny but could only have been guilty of conspiracy to commit a felony, embezzlement or forgery, and that his counsel was incompetent in allowing him to enter a plea to a charge that he could not be guilty of.
Appellant's case on appeal must fail for two reasons.
It is uncontradicted for the record that although appellant was committed to the Indiana Reformatory on his conviction for grand larceny on April 23, 1957, he did not until April 30, 1962, which was five years later as heretofore stated, file his petition for coram nobis in the lower court. If a long or unusual delay occurs before the filing of a petition for writ of error coram nobis (now under our present rules a belated motion for new trial) the petitioner should set forth a valid and reasonable excuse for such delay stating in substance when and how the cause was first discovered, ther facts constituting the cause, and why the cause could not have been discovered previously by the exercise of due diligence. Barker v. State (1963), Ind., 191 N.E.2d 9, 13; State ex rel. Casey v. Murray (1952), 231 Ind. 74, 77, 106 N.E.2d 911, 912; See also: Rule 2-40 of this Court.
As is pointed out in the briefs, appellant in this case, wittingly or unwittingly, waited until after the five year statute of limitations had run before he pointed out in his coram nobis petition that he should have been charged with conspiracy to commit a felony, embezzlement or forgery rather than larceny. He has offered no reason for the delayed filing or his petition for the writ and we must therefore consider that his extreme tardiness in raising the question for a period of five years after his conviction and confinement...
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Perry v. State
...stated when writs were sought following trial and conviction and the writ was analogous to a motion for new trial. See Burton v. State (1964), 246 Ind. 197, 202 N.E.2d 165; Barker v. State (1963), 244 Ind. 267, 191 N.E.2d This distinction continued when the writ of error coram nobis was rep......
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State v. Irvin
...(1947), 225 Ind. 169, 73 N.E.2d 478. The trial court need not appoint such counsel as the defendant may choose. Burton v. State (1964), 246 Ind. 197, 200, 202 N.E.2d 165, 204 N.E.2d 218; McDowell v. State (1947), 225 Ind. 495, 76 N.E.2d 249. The services of an attorney appointed by the cour......
- Burton v. State, 30475