Fitch v. State

• Decision Date: 15 December 1981
• Docket Number: No. 3-381A72,3-381A72
• Parties: Bobby FITCH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1374

428 N.E.2d 1374

Bobby FITCH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3-381A72.

Court of Appeals of Indiana, Third District.

Dec. 15, 1981.

James R. Beaver, Halleck & Beaver, Rensselaer, for appellant.

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

HOFFMAN, Presiding Judge.

Bobby Fitch appeals his conviction of forgery, a class C felony. Issues raised are:

(1) whether the trial court erred in denying Fitch's request for a continuance made on the morning of the trial;

(2) whether Fitch was denied a fair trial because of incompetent counsel;

(3) whether the judgment is supported by sufficient evidence; and

(4) whether the trial court erred in giving one of the State's tendered instructions.

The evidence most favorable to the State reveals that on August 23, 1979 Fitch entered a store and bought a pair of jeans and a shirt. Fitch presented the store owner with a check which had previously been made out for the sum of $40 and signed by Steve Eastman. When asked for identification, Fitch could not document his identity, but rather, gave a false social security number.

The check was returned unpaid. Eastman testified that he did not sign the check or authorize anyone to sign his name to the check.

Fitch argues initially that the trial court erred in denying his request for a continuance which was made just prior to the start of his trial. It appears that Fitch sought a continuance in order to secure witnesses who would testify that Fitch could neither read nor write.

The trial court did not err in denying Fitch's request for a continuance. IC 1971, 35-1-26-1 (Burns 1979 Repl.) provides:

"Motion and affidavit of defendant.-A motion by the defendant to postpone the trial on account of the absence of evidence can be made only on affidavit showing materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it, and where the evidence may be; and if the postponement be asked on account of an absent witness, the affidavit must show the name and residence of the witness, if known, and the probability of procuring his testimony within a reasonable time. The affidavit must further show that the absence of such witness has not been procured by the act or connivance of the defendant, nor by others at his request, nor with his knowledge and consent, and what facts he believes the witness will testify to, and that he believes them to be true, and that he is unable to prove such facts by any other witness whose testimony can be as readily procured. If, thereupon, the prosecuting attorney will admit that the witness, if present, will testify to the facts which the defendant in his affidavit for continuance alleges that he can prove by the absent witness, or if the evidence be written or documentary, that such documentary evidence exists, the trial shall not be postponed for that cause. The defendant shall file such affidavit for continuance at least five (5) days before the date set for trial or shall sustain the burden of establishing to the satisfaction of the court, that the defendant is not at fault for failing to file such affidavit for continuance at an earlier date. If the motion for continuance is based upon the illness of the defendant or of a witness the motion shall be accompanied by the oral testimony, in open court, or by the written statement of a physician or hospital official having the care or custody of such defendant or witness, presenting the nature of the illness and the probable duration of his incapacity to attend trial. Such written statement of the physician or hospital official shall be sworn to by such physician or hospital official before a notary public or other officer authorized to administer an oath. The court may appoint a physician who shall examine the defendant or the witness, and shall report to the court on the nature of the defendant's illness and the probable duration of his incapacity to attend trial. Compensation for such physician shall be provided by order of the court." (Emphasis added.)

The record reveals that Fitch's oral motion for a continuance was not supported by affidavit. This fact alone is sufficient to permit a trial court, in its discretion, to deny the motion. Bridgewater v. State (1979), Ind.App., 393 N.E.2d 223. Additionally, the oral motion did not contain the name and residence of any witnesses, nor did it meet many of the other requirements of the statute. This information also did not appear in Fitch's motion to correct errors. Furthermore, it was made known to the trial court that two witnesses were present to testify that Fitch was functionally illiterate. The trial court did not abuse its discretion in denying the request for a continuance.

Fitch next contends that he was denied a fair trial because his court-appointed attorney failed to competently represent him. It is well settled that there exists a presumption that an attorney has provided competent representation. "That presumption will be disturbed only upon strong and convincing proof that what the attorney did or did not do made a mockery of the trial and shocks the conscience of the reviewing court." Deadwiler v. State (1980), Ind., 405 N.E.2d 521, at 521-522. In applying this standard, this Court looks to the totality of the circumstances to see if and how the defendant was harmed by his attorney's inadequacies. Smith v. State (1979), Ind., 396 N.E.2d 898. It is from this perspective that Fitch's allegations will be examined.

The record reveals that Fitch's trial counsel performed many services in connection with this case. Among these are: filing a motion for discovery, taking of depositions from three witnesses, obtaining a reduction of Fitch's bond, and making proper objections at trial. Despite this, Fitch contends that trial counsel was incompetent because he did not give Fitch adequate notice of the trial date or set aside an adequate amount of time to discuss the case prior to the trial.

The record shows that Fitch's trial counsel was appointed on October 25, 1979 and the trial was originally set for January 15, 1980. The trial was postponed, and...