Davis v. State, No. 279S44

Docket NºNo. 279S44
Citation272 Ind. 192, 396 N.E.2d 893
Case DateNovember 27, 1979
CourtSupreme Court of Indiana

Page 893

396 N.E.2d 893
272 Ind. 192
Robert L. DAVIS, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 279S44.
Supreme Court of Indiana.
Nov. 27, 1979.

[272 Ind. 193] Harriette Bailey Conn, Public Defender, Paul Jeffery Ffoulkes Roberts, Deputy Public Defender, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Cindy A. Ellis, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

This is an appeal from the denial of post conviction relief, Post Conviction Remedy Rule 1. Petitioner, (Appellant) was charged with rape, Ind. Code § 35-13-4-3 (Burns 1975), and kidnapping, Ind. Code § 35-1-55-1 (Burns 1975). He entered a plea of guilty to the rape charge and was convicted of kidnapping in a trial by jury. He was sentenced to seventeen (17) years upon the rape charge and life imprisonment upon the kidnapping conviction. Upon direct appeal, his conviction was affirmed by this Court. Davis v. State, (1976) 265 Ind. 476, 355 N.E.2d 836.

The petitioner's appeal from the denial of the post conviction relief presents several assignments of error. The dispositive issue, however, is the trial court's denial of a

Page 894

timely motion for change of judge. Upon the precedent of Adams v. State, (1978) Ind., 376 N.E.2d 482, which had not yet been published at the time the judge made his ruling, we resolve that issue in the petitioner's favor; and in view of that resolution, the other issues need not be addressed.

The petitioner filed a Pro se petition for post conviction relief and a timely Pro se motion for a change of judge, pursuant to Post Conviction Rule 1 § 4(b). By said motion, he alleged "that the sentencing judge has a personal bias or prejudice against the petitioner." To the motion he attached his affidavit which repeated the allegation of bias and prejudice and attempted to set forth his reasons for believing that such bias and prejudice existed. The motion and affidavit were deficient, however, because they were not allegations of fact but, rather, were [272 Ind. 194] statements of his conclusions that the judge had erred at petitioner's prior guilty plea hearing. Specifically, he alleged that the judge had not advised him of his constitutional rights to remain silent and to require the State to prove the charges. The trial court properly appointed the Public Defender to represent the petitioner, continued the cause for appearance of the Public Defender and took the motion for change of...

To continue reading

Request your trial
4 practice notes
  • Davis v. State, No. 581S145
    • United States
    • Indiana Supreme Court of Indiana
    • April 13, 1983
    ...relief for the reason that the trial court had erroneously failed to grant a change of judge. Davis v. State, (1979) Ind., 396 N.E.2d 893. After a hearing before a new judge, the petition for post-conviction relief was again denied. Petitioner now presents the following issues for our 1. Wh......
  • Haybron v. State, No. 279S36
    • United States
    • Indiana Supreme Court of Indiana
    • November 27, 1979
    ...bias. In the case before us, although the publications cited had the potential to engender such bias, the voir dire examination of the [272 Ind. 192] jury array demonstrated that it had not had that effect. From the record before us, it appears that the only venireman who might have been af......
  • Zavesky v. State, No. 45A04-9007-PC-358
    • United States
    • Indiana Court of Appeals of Indiana
    • May 14, 1991
    ...... the latter cause involving an habitual offender finding supported by the conviction now attacked." As noted in Davis v. State (1979), 272 Ind. 192, 396 N.E.2d 893, The rule is mandatory. A change shall be granted when the motion is timely filed, states a factual basis for a genuine beli......
  • Davis v. Duckworth, No. 89-3002
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 29, 1990
    ...that Davis had adequately supported his allegations of bias sufficient to prevail on a change of judge motion. Davis v. State of Indiana, 396 N.E.2d 893 (Ind.1979) (Davis I ). Holding that it was error for the judge to have denied the motion, the court reversed, specifically holding that it......
4 cases
  • Davis v. State, No. 581S145
    • United States
    • Indiana Supreme Court of Indiana
    • April 13, 1983
    ...relief for the reason that the trial court had erroneously failed to grant a change of judge. Davis v. State, (1979) Ind., 396 N.E.2d 893. After a hearing before a new judge, the petition for post-conviction relief was again denied. Petitioner now presents the following issues for our 1. Wh......
  • Haybron v. State, No. 279S36
    • United States
    • Indiana Supreme Court of Indiana
    • November 27, 1979
    ...bias. In the case before us, although the publications cited had the potential to engender such bias, the voir dire examination of the [272 Ind. 192] jury array demonstrated that it had not had that effect. From the record before us, it appears that the only venireman who might have been af......
  • Zavesky v. State, No. 45A04-9007-PC-358
    • United States
    • Indiana Court of Appeals of Indiana
    • May 14, 1991
    ...... the latter cause involving an habitual offender finding supported by the conviction now attacked." As noted in Davis v. State (1979), 272 Ind. 192, 396 N.E.2d 893, The rule is mandatory. A change shall be granted when the motion is timely filed, states a factual basis for a genuine beli......
  • Davis v. Duckworth, No. 89-3002
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 29, 1990
    ...that Davis had adequately supported his allegations of bias sufficient to prevail on a change of judge motion. Davis v. State of Indiana, 396 N.E.2d 893 (Ind.1979) (Davis I ). Holding that it was error for the judge to have denied the motion, the court reversed, specifically holding that it......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT