Coffey v. State

• Citation: 156 Ind.App. 363,296 N.E.2d 663
• Decision Date: 07 June 1973
• Docket Number: No. 1--972A74,1--972A74
• Parties: Truman COFFEY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Court of Appeals of Indiana

Page 663

296 N.E.2d 663

156 Ind.App. 363

Truman COFFEY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1--972A74.

Court of Appeals of Indiana, First District.

June 7, 1973.

Rehearing Denied July 17, 1973.

Lawrence D. Renfro, Renfro & Whitton, New Castle, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., for plaintiff-appellee.

ROBERTSON, Presiding Judge.

Defendant Coffey was charged by affidavit on April 2, 1969, with the offense of aggravated assault to which he entered a plea of not guilty. On February 28, 1972, a jury found Coffey guilty of aggravated assault and battery, and he was thereafter sentenced accordingly by the Henry Circuit Court. By way of his overruled motion to correct errors, Coffey raises two issues for review on appeal: (1) whether the trial court erred in denying Coffey's motion for discharge, and (2) whether there was sufficient evidence to sustain the jury's verdict. We are of the opinion that neither issue presents reversible error.

Coffey's motion for discharge alleged that he had been held ¹ on the charge of aggravated assault without trial for a period of almost three years, and that such a delay was in violation of his constitutional right to a speedy trial. Trial of this cause was originally set for May 20, 1969, approximately one month and a half subsequent to the filing of the affidavit. On May 13, 1969, Coffey, by counsel, requested a continuance which was granted, and the cause was ordered reset for trial at a later date. Thereafter trial was set for March 23, 1970, on which date Coffey filed a second motion for continuance which was granted. On September 3, 1970, the court set trial for March 22, 1971, and notified counsel. However, on March 18, 1971, counsel for Coffey made a third motion for continuance which was granted, and the March 22nd trial date was stricken. Trial was finally set for February 28, 1972, at which time Coffey motioned the court for discharge which was overruled and trial was commenced.

It is apparent from the foregoing review of the proceedings in this cause that the delay in bringing Coffey to trial was due to his own acts or to the acts of counsel acting on his behalf. Such a situation is expressly contemplated by Rule CR. 4, Ind. Rules of Proc., pertinent portions of which read:

'(C) No person shall be held by recognizance to answer an indictment or affidavit, without trial, for a period embracing more than one (1) year continuously from the date on which a recognizance was first taken therein; but he shall be discharged except as provided by subdivision (A) of this rule.'

Subdivision (A) of CR. 4 reads:

'(A) No defendant shall be detained in jail on a charge, without a trial, for a continuous period embracing more than six (6) months 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. . . .' (Emphasis added).

Also see Cody v. State (1972), Ind., 290 N.E.2d 38; Easton v. State (1972), Ind., 280 N.E.2d 307; Kelley v. State (1973), Ind.App., 295 N.E.2d 372. Accordingly, we find that the trial court did not err in overruling the motion for discharge.

The substance of Coffey's argument challenging the sufficiency of the evidence is that the State failed to prove beyond a reasonable doubt that he did anything more than slap the prosecuting witness which would constitute the offense of assault and battery rather than aggravated assault and battery of which Coffey was convicted. The elements of the offense of aggravated assault and battery are defined by IC 35--13--3--1, Ind.Ann.Stat. §...