Calloway v. State

• Citation: 500 N.E.2d 1196
• Decision Date: 09 December 1986
• Docket Number: No. 484S148,484S148
• Parties: Dorris Ray CALLOWAY, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 1196

500 N.E.2d 1196

Dorris Ray CALLOWAY, Appellant, v. STATE of Indiana, Appellee.

No. 484S148.

Supreme Court of Indiana.

Dec. 9, 1986.

Susan K. Carpenter, Public Defender and Eric L. Mayer, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. and Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant pled guilty to the offense of Burglary, a Class C felony, and to being an habitual offender. The court imposed a twenty-eight (28) year sentence.

On December 22, 1981, an information was filed charging appellant with burglary. The information was subsequently amended to include an habitual offender count. On December 30, 1981, appellant was charged with theft in an unrelated cause. That information was also amended to include an habitual offender allegation.

On March 3, 1982, appellant entered into a plea agreement whereby he would plead guilty to burglary and to being an habitual offender. The prosecution agreed to drop the remaining counts and recommended a twenty-eight year sentence. After conducting a hearing on that date, the court accepted the plea and sentenced appellant to eight years on the Class C felony and enhanced the sentence by twenty years due to the habitual offender status. See Ind.Code Sec. 35-50-2-8(e).

On October 25, 1982, appellant filed a pro se post-conviction petition which was subsequently amended. On August 29, 1983, the court granted appellant's petition for relief and vacated his conviction. The court concluded that the threat made by the prosecution during plea negotiations, that it would seek maximum and consecutive sentences in the two causes for a total of seventy-two years imprisonment, was unfounded; therefore, appellant's plea was not voluntarily entered because his misconception of the law regarding the potential sentencing was a significant factor in his decision to enter a plea of guilty.

On September 12, 1983, the prosecution filed a motion to correct error, in part alleging that the trial court erred in concluding that there was no possibility of consecutive enhanced sentences in the event of convictions and habitual offender findings in both cases. The court denied the motion, with the exception of the correction of one of its findings which had no effect on the judgment.

One week later the prosecution filed a second motion to correct error, the sole allegation being that the court misconstrued the law in regard to the potential sentencing. The prosecution cited Kelly v. State (1983), Ind., 452 N.E.2d 907, which had been handed down the same day as the court's entry of judgment vacating appellant's conviction. On November 25, the court, expressly relying on Kelly, granted the prosecution's motion and set aside its earlier judgment of post-conviction relief. Appellant's subsequent motion to correct error was denied.

Appellant contends that the trial court erred in granting the prosecution's motion because there is no authority for the filing or consideration of a second motion to correct error after the first such motion has been denied. He also contends that even if a second motion to correct error were permitted, the prosecution's motion was automatically denied after five days under Ind.R.Tr.P. 53.4(B).

Appellant's statement of the applicable law and procedure is essentially correct. While a motion to correct error may be amended within the sixty-day time limitation set out in Ind.R.Tr.P. 59(C), there is no authority in the trial rules or case law to support a second motion to correct error after the first such motion has been denied. Staples v. State (1983), Ind., 452 N.E.2d 985; Fancher v. State (1982), Ind., 436 N.E.2d 311. Once a ruling is made on a motion to correct error the time allowed for perfecting an appeal begins to run, and a motion to reconsider or rehear the motion does not extend the time. Fancher, supra; Mohney v. State (1974), 159 Ind.App. 246, 306 N.E.2d 387, trans. denied.

In State ex rel. Rans v. St. Joseph Superior Court (1964), 246 Ind. 74, 201 N.E.2d 778, which involved the former motion for a new trial rather than the present motion to correct error, this Court entered a permanent writ of mandate compelling the respondent court to expunge its record granting a motion for a new trial and granting a rehearing on its previous ruling denying the motion for a new trial. In discussing the need for finality of trial court proceedings, Justice Arterburn explained that:

"Motions 'to rehear' or 'reconsider' are, as the term implies, a request to be heard a second time on the same issues. In fact, a motion for a new trial in reality is a reconsideration and rehearing of the decision or verdict previously rendered. How many rehearings and reconsiderations of a ruling or judgment is a party entitled to have? After a motion for a new trial or a motion to reconsider or a motion to rehear is ruled upon, may a party then ask for another rehearing and reconsideration, and may such petitions for rehearing and reconsideration go on ad infinitum? A party against whom a ruling on a motion for a new trial has been made still has his remedy if he thinks error exists, by appeal or under the statute for a review thereof. (Citation omitted.)

"Rules of procedure and justice require that there must be an end to litigation at some point. We agree with relator that there is no statutory or common law authority for a petition for 'rehearing' on a motion for a new trial." Id. at 78-79, 201 N.E.2d at 780.

Here, the issue raised in the second motion to correct error had also been raised in the first. The second motion to correct error was filed one week after the first had been filed. The prosecution filed a praecipe fifteen days later, well before the court ruled on the second motion. It is thus apparent that the filing of the motion was not a delaying tactic or an attempt to extend the appellate deadlines. The prosecution brought to the attention of the trial court a very recent case which clarified the area of law at issue. As the record of proceedings had not yet been filed, the trial court retained jurisdiction over the case, and had the inherent power to set aside or vacate its judgment. See Id. at 77, 201 N.E.2d at 779.

If the court had refused or failed to correct his error and the prosecution had pursued an appeal from the denial of the first motion, that appeal, as discussed more fully below, would have resulted in a reversal. In the interest of judicial economy, we hold that under the circumstances of this case the court did not commit reversible error in correcting his ruling on the first motion. This holding does not affect our previous cases which stand for the proposition that the filing of a second motion to correct error after the first motion has been denied is not permitted. Staples, supra; Fancher, supra. Given our disposition of this issue, it follows that Ind.R.Tr.P. 53.4(B),...