Ford v. State, 3--874A136

• Decision Date: 11 August 1975
• Docket Number: No. 3--874A136,3--874A136
• Citation: 332 N.E.2d 221,165 Ind.App. 303
• Parties: Nathaniel FORD, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 221

332 N.E.2d 221

165 Ind.App. 303

Nathaniel FORD, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 3--874A136.

Court of Appeals of Indiana, Third District.

Aug. 11, 1975.

Paul J. Giorgi, Nicholas J. Schiralli, Merrillville, for appellant.

Theodore L. Sendak, Atty. Gen., George B. Loy, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Presiding Judge.

Ford was convicted of robbery and sentenced for a period of not less than ten (10) nor more than twenty-five (25) years. Ford's sole contention of error on appeal is that he was incarcerated in the Lake County Jail for more than six (6) months without a trial and should have been discharged under Indiana Rules of Procedure, Criminal Rule 4(A).

The version of CR. 4(A) applicable to this case reads as follows:

'(A) Defendant in jail. 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 (which ever is later); except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall make such statement in a motion for continuance not later than ten (10) days prior to the date set for trial, or if such motion is filed less than ten (10) days prior to trial, the prosecuting attorney shall show additionally that the delay in filing the motion was not the fault of the prosecutor.' ¹

Under this version of CR. 4(A), Ford is entitled to a dismissal if he has been incarcerated for six months without a trial unless he has been responsible for delay causing the trial to be set beyond the six month period. Johnson v. State 1974), Ind., 313 N.E.2d 535; Layton v. State (1973), Ind., 301 N.E.2d 633; State ex rel. Dull v. Circuit Court of Delaware County (1973), Ind., 301 N.E.2d 519. ²

The record before this Court discloses the following sequence of events:

February 3, 1972 Affidavit for robbery filed against Ford and co-defendant, Thomas; Ford arrested. ³

February 10, 1972 Trial set for February 28, 1972.

February 25, 1972 Trial continued at defendant's request.

March 22, 1972 Trial set for April 3, 1972.

April 3, 1972 Ford moves for separate trial; motion overruled; trial set for April 25, 1972.

April 25, 1972 Court orders separate trials for Thomas and Ford.

May 12, 1972 Trial set for May 30, 1972.

May 30, 1972 Trial continued on court's own motion.

July 19, 1972 Trial set for July 31, 1972.

July 31, 1972 Trial continued until September 5, 1972 by agreement of the parties.

September 5, 1972 Trial continued 'at the request of the defendant by counsel.' ⁴

October 23, 1972 Trial set for November 13, 1972.

November 13, 1972 Court appoints new pauper attorney to represent Ford.

November 28, 1972 Trial set for December 29, 1972.

December 26, 1972 Ford's second pauper attorney granted leave to withdraw.

December 27, 1972 Court reappoints first pauper attorney to represent Ford; cause set for trial on January 12, 1973.

January 12, 1973 Cause set for hearing on State's motion to expunge the April 25, 1972 entry granting Thomas and Ford separate trials.

January 25, 1973 Court grants motion to expunge; trial set for February 28, 1973.

February 28, 1973 Ford files petition for discharge; petition denied; jury trial commences.

Ford argues that the last delay chargeable to him is the July 31, 1972 continuance agreed to by the parties, and therefore, he is entitled to discharge because he was incarcerated for more than six months without trial from July 31, 1972 to February 28, 1973. Under CR. 4(A), prior to the 1973 amendment, delay chargeable to Ford caused the six month period to run anew from the last day of the delay chargeable to Ford. Holt v. State (1974), Ind., 316 N.E.2d 362; Summerlin v. State (1971), 256 Ind. 652, 271 N.E.2d 411; Johnson v. State, supra. ⁵ In this case, Ford agreed to a continuance until September 5, 1972. The last day of the delay chargeable to Ford is September 5, 1972, not July 31, 1972. ⁶ See Holt v. State, supra. Regardless of whether any of the delays subsequent to September 5, 1972 are chargeable to Ford, he was brought to trial within six months of the last delay clearly chargeable to him. There has been no violation of Ford's right to discharge under the applicable version of CR. 4(A).

Accordingly, the judgment of the trial court is affirmed.

HOFFMAN and GARRARD, JJ., concur.

1 The date for determining what rule is applicable to these proceedings is the date of the proceedings which started the time...