Fink v. State
| Decision Date | 10 December 1984 |
| Docket Number | No. 4-783A228,4-783A228 |
| Citation | 471 N.E.2d 1161 |
| Parties | James R. FINK, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Having been convicted by jury of criminal confinement, James Fink initiated this appeal. We affirmed his conviction in our decision published at 469 N.E.2d 466, concluding that he was not entitled to discharge pursuant to Ind.Rules of Procedure, Criminal Rule 4(B). Fink now petitions for rehearing, which we grant for purposes of clarifying our discussion of waiver of the right to a speedy trial under C.R. 4.
In our original decision, we concluded that Fink's invocation of the seventy-day speedy trial period defined by C.R. 4(B) was not defeated by the prosecution's simultaneous dismissal and refiling of factually-related charges. We upheld his conviction, however, on grounds that his failure to object to the setting of trial beyond the statutory deadline constituted a waiver of his right to discharge under the rule. Appellant now emphasizes the trial court's belated action on January 12, 1983, the final day of the statutory period, to schedule trial for April 18, 1983. As a practical matter, the state could no longer bring him to trial within the statutory time limits, a fact which he contends obviates his duty to make a timely objection.
Fact-sensitive by nature, C.R. 4 determinations regarding a defendant's waiver of the right to a speedy trial in such circumstances must proceed on a case-by-case basis. Our courts have only once before tenuously embraced the position urged by appellant for the first time on rehearing. In Pillars v. State (1979), 180 Ind.App. 679, 390 N.E.2d 679, the Third District held that the defendant was entitled to be discharged pursuant to C.R. 4, despite his failure to object immediately when the trial court one week prior to expiration of the statutory period rescheduled trial to a date beyond the one-year limitation of C.R. 4(C). Judge Staton in his majority opinion relied primarily upon the fact that the defendant lacked notice of the rescheduling of trial until the day before he filed his objection, and accordingly held that the objection was timely. He also observed, however, that because the period expired only a week after the trial date was changed, an earlier objection was unlikely to have enabled the court to reschedule trial within the proper period. In support of this proposition, the court in Pillars cited Justice DeBruler's dissenting opinion in State ex rel. Wernke v. Superior Court of Hendricks County (1976), 264 Ind. 646, 348 N.E.2d 644, suggesting that the purpose normally served by the rule requiring a timely objection becomes irrelevant when a timely trial is no longer possible. The majority in Wernke, however, declined to address the issue.
Rather than reach this issue in the present case, we note the logical merits of appellant's position regarding a situation which entails competing considerations of judicial economy and judicial realism. Although this case is distinguishable on its procedural history from Pillars, and we therefore find alternative grounds on which to affirm the trial court's denial of Fink's motion for discharge, the likelihood of recurrence of this situation warrants discussion of the issue.
On the one hand, we note the strong rationale underlying the general and well-established rule that upon learning within the statutory period that trial has been set beyond the period, the defendant must object or be deemed to have waived the error. Martin v. State (1981), Ind.App., ...
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