Dukes v. State

• Decision Date: 29 February 1996
• Docket Number: No. 12A05-9502-CR-045,12A05-9502-CR-045
• Parties: Thomas Eugene DUKES, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1263

661 N.E.2d 1263

Thomas Eugene DUKES, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 12A05-9502-CR-045.

Court of Appeals of Indiana.

Feb. 29, 1996.

Appeal from the Clinton Circuit Court; Honorable Jack R. O'Neill, Judge, No. 12C01-7110-CF-6502.

Richard L. Langston, Frankfort, for Appellant.

Pamela Carter, Attorney General, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

SHARPNACK, Chief Justice.

Thomas Eugene Dukes, Jr. appeals his convictions for second degree burglary and theft. Dukes raises eight issues which we consolidate and restate as:

(1) whether the trial court erred when it denied Dukes' motion to dismiss based upon an alleged violation of Ind.Crim.Rule 4(B); and

(2) whether the trial court erred when it imposed a greater sentence on Dukes upon retrial after the post-conviction court vacated his earlier conviction which was based on a guilty plea.

We affirm.

The facts most favorable to the judgment follow. On October 13, 1971, Dukes was charged with one count of second degree burglary and one count of theft. Pursuant to a plea agreement, Dukes pleaded guilty to the theft charge, and the burglary charge was dismissed. On January 10, 1972, the trial court sentenced Dukes to an indeterminate term of one to five years.

On January 20, 1993, Dukes filed a pro se motion for post-conviction relief in which he alleged that the guilty plea advisements were not made during the guilty plea hearing. On October 18, 1993, the post-conviction court granted Dukes' petition. The court vacated Dukes' conviction for theft, reinstated both the burglary and theft charges, and reinstated Dukes' plea of not guilty to each charge. The post-conviction court scheduled a trial for March 22, 1994.

On October 28, 1993, Dukes filed a pro se motion for speedy trial. Soon after, Dukes' counsel entered an appearance and requested a jury trial. On March 22, 1994, the trial court, on its own motion, moved the trial date to September 27, 1994, because of court congestion. On February 24, 1994, Dukes filed a pro se motion to dismiss alleging that the trial court failed to bring him to trial within seventy days pursuant to his motion for early trial. The trial court's docket entry reveals that no action was taken on this motion. On September 19, 1994, Dukes again filed a motion to dismiss, which was denied the following day. On September 26, 1994, Dukes filed a motion to reconsider, as well as a motion to stay the proceedings. In addition, Dukes filed a request for certification of order for interlocutory appeal. Both motions and the request for certification were denied by the trial court. The trial began on September 27, 1994, and the jury found Dukes guilty of both counts.

I.

The first issue for our review is whether the trial court properly denied Dukes' motion based upon an alleged violation of Ind.Crim.Rule 4(B). ¹ Dukes also challenges: (1) the trial court's failure to grant his September 19, 1994, motion to dismiss, (2) the failure of the trial court to rule on Dukes' February 24, 1994, motion to dismiss, and (3) the failure of the trial court to grant Dukes' motion to reconsider. In a separate portion of the brief, Dukes appeals the trial court's denial of his motion to stay the proceedings and the denial of his request for an order of certification for interlocutory appeal. Since the resolution of these issues depends on the same analysis, we will consider them as part of our discussion of whether the trial court properly denied Dukes' motion to dismiss. The dispositive question for all of these issues is whether Dukes' pro se motion for early trial constituted an objection to the set trial date. ²

Our criminal rules allow a criminal case to be discharged because of delay. The applicable rule provides as follows:

"(B)(1) Defendant in Jail--Motion for Early Trial. If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar.... (2) In computing the time ... each and every day after the filing ... shall be counted, including every Saturday, every Sunday, and every holiday...."

Crim.R. 4(B). A defendant must object at the earliest opportunity when his trial date is scheduled beyond the limits prescribed by the rule. Bell v. State, 622 N.E.2d 450, 454 (Ind.1993); Hoemig v. State, 522 N.E.2d 392, 398 (Ind.Ct.App.1988), reh'g denied. This requirement is enforced to enable the trial court to reset the trial date within the proper time period. See Arch v. State, 269 Ind. 450, 381 N.E.2d 465 (1978); Saunders v. State, 562 N.E.2d 729, 735 (Ind.Ct.App.1990), opinion vacated in part on other grounds, 584 N.E.2d 1087. Failure to object is regarded as acquiescence in the new trial date and waiver of the right to speedy trial. Bell, 622 N.E.2d at 454; Vance v. State, 620 N.E.2d 687, 689 (Ind.1993); Green v. State, 650 N.E.2d 307, 310 (Ind.Ct.App.1995) (holding that such acquiescence constitutes a complete abandonment of an early trial motion). In such cases, the motion for early trial no longer has legal validity. James v. State, 622 N.E.2d 1303, 1306 (Ind.Ct.App.1993) (quoting Wilburn v. State, 442 N.E.2d 1098, 1103 (Ind.1982)). However, a defendant has no duty to object to the setting of a belated trial date when the act of setting such date occurs after the Crim.R. 4 time limit has expired such that the court cannot reset the trial date within the time allotted by the rule. Saunders, 562 N.E.2d at 735.

The facts briefly restated are that Dukes filed a successful motion for post-conviction relief. As a result, on October 18, 1993, the post-conviction court vacated Dukes' conviction on the theft charge, reinstated the charges for theft and burglary, reinstated the not guilty pleas and ordered a new trial on March 22, 1994. On October 28, 1993, Dukes filed his pro se motion for early trial. Dukes argues that the filing of his motion for an early trial constituted an objection to the trial date which had been set beyond the seventy day period. Specifically, Dukes suggests that "[t]he mere filing of the motion was an indication he did not acquiesce to the trial date." Appellant's brief, p. 12. The State contends that the "mere filing" of the motion for speedy trial does not constitute an objection. Alternatively, the State maintains that if the motion for speedy trial constitutes an objection, then this objection was not timely. We note that neither party developed an argument or cited to authority. In addition, our own research has revealed no case directly on point. However, today we hold that filing a motion for early trial does not constitute an objection under these circumstances.

Generally, the accused files a motion for early trial soon after being charged. If the trial court then sets the trial date outside of the 70 day period, the accused must make a timely objection to the date. This objection serves to alert the trial court that it must reset the trial date within the 70 day period. Here, however, the trial date was already set by the post-conviction relief court when Dukes filed his motion for early trial.

Dukes argues that in his case, we should interpret the filing of his motion for early trial as an objection to the trial date. However, even given the unique procedural posture of this case, we are not persuaded by Dukes' argument that his filing of the motion for an early trial simultaneously constituted an objection. Our reluctance is based primarily on three factors. First, while Dukes' motion for early trial was filed pro se, Dukes was appointed counsel on October 18, 1993. Counsel made his appearance on November 2, 1993, which was well within the initial seventy day time period ending on January 6, 1994. Counsel filed motions for discovery during this time and was actively preparing for the trial. Thus, he had an opportunity to file an objection. While we can only speculate that counsel assumed that Dukes' pro se motion constituted an objection and therefore, that a formal objection was unnecessary, we believe that a prudent attorney, nonetheless, would have filed an objection to the trial date.

In addition, Dukes' motion for speedy trial did not specifically refer to the assigned trial date. Dukes' motion was clearly labeled a motion for speedy trial and asserted that the criminal rule required Dukes to be tried within seventy days or discharged. However, the motion made no reference to the post-conviction court's assignment for trial on March 22, 1994, and did not identify the day that the seventy day time period would have expired. In fact, the motion contained none of the language that would typically be found in an objection.

Finally, Dukes failed to develop a persuasive argument. Instead, his brief makes bald assertions without a thoroughly reasoned and supported argument. We are not obligated to develop the argument for Dukes. Rather, he has the burden of persuasion in this matter. See Ind.Appellate Rule 8.3. Since he has provided no authority or persuasive argument for his interpretation of the motion for early trial, we find that Dukes fails to meet his burden. Therefore, the trial court did not err in denying his motion to dismiss. ³

Since we have determined that Dukes did not file an objection to the setting of the trial date outside of the seventy day time period, he is deemed to have acquiesced in that date and his motion for early trial is waived. Moreover, the trial court was authorized to continue the trial due to court congestion. Crim.R. 4(B). If the trial court continues a trial because of court congestion, the court is...