Fossey v. State, 369S52

• Decision Date: 28 May 1970
• Docket Number: No. 369S52,369S52
• Citation: 258 N.E.2d 616,254 Ind. 173
• Court: Indiana Supreme Court
• Parties: Weldon Thomas FOSSEY, Appellant, v. STATE of Indiana, Appellee.

Page 616

258 N.E.2d 616

254 Ind. 173

Weldon Thomas FOSSEY, Appellant, v. STATE of Indiana, Appellee.

No. 369S52.

Supreme Court of Indiana.

May 28, 1970.

William C. Erbecker, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Kenneth M. McDermott, Deputy Atty. Gen., for appellee.

HUNTER, Chief Justice.

Appellant was charged by affidavit on August 4, 1966 on three counts,--second degree burglary, theft and safe burglary. Trial resulted in the conviction of appellant on the charges of second degree burglary and theft. On this appeal, appellant seeks to have the cause dismissed on the ground that his right to a speedy trial was violated under the holding of Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). Secondly, appellant contends that the proceedings in the trial court were void by virtue of the fact that appellant had filed a petition for removal with the U.S. District Court prior to trial.

For purposes of discussion we shall first determine whether the trial court erred in proceeding to trial notwithstanding appellant's petition for removal. The record shows that counsel for appellant filed a petition for removal in the Federal District Court on December 5, 1968, the same day the trial commenced. The cause has subsequently been remanded to the trial court but not until after the completion of appellant's trial.

It is not clear from the file stamps appearing on the notice of removal or on the copy of the petition for removal at exactly what point in time on December 5th they were filed. However, we note that appellant alleges in his motion for new trial that they were filed prior to the commencement of the trial and the state failed to file a counter-affidavit to challenge this allegation. The law appears to be clear that the state court loses jurisdiction at the very latest when service of the removal petition is made on the state court and plaintiff and where it is served prior to trial. Schuchman v. State (1968), Ind., 236 N.E.2d 830. Further, any subsequent proceedings in the state trial court are void while such a petition is pending since that court is without jurisdiction until such time as the cause is remanded by the federal district court. See numerous cases cited at 25 A.L.R.2d 1040 and in later case service. Consequently it is clear that the state trial court in this case had no jurisdiction at the time in question to proceed with the trial and the proceedings thus had were void. Although we feel bound to hold that the trial court no longer had jurisdiction to try the case once all procedural requirements were fulfilled under the federal removal statute prior to trial, we would note parenthetically that the federal courts could be of great assistance to state courts in the administration of justice by promulgatinga rule construing the phrase 'prior to trial' found at 28 U.S.C. § 1446(c) to mean a reasonable time prior to trial, perhaps five days. Such a rule would in no way prejudice the defendant, and at the same time would put state trial courts on adequate notice that the defendant was removing the case so that the trial calendar could be adjusted, etc. As it stands, the rule allows the defendant to disrupt the trial court in the administration of its duties by waiting until the morning of trial to file notice. We see no sound reason for allowing this practice to continue and would encourage the federal courts to consider this suggestion.

Despite our determination on the jurisdictional issue it will be necessary to consider appellant's contention that he was deprived of a speedy trial since our decision on that question will determine whether appellant may, in fact, be retried.

In determining whether appellant's right to a speedy trial has been violated, several issues must be resolved. First, however, it is necessary to understand the sequence of events and the date of each occurrence. As noted above, appellant was charged by affidavit on August 4, 1966. After appellant's arrest he was transferred from the Jasper County jail to the custody of the Warden of the Indiana State Prison for 'safekeeping'. On October 27, 1966 appellant's custody was delivered to a United States marshal in order that appellant could serve the balance of a sentence imposed as a result of a previous conviction in the federal courts. On May 9, 1967 appellant filed a pro se petition for a speedy trial in the Jasper Circuit Court. The cause was set on February 27, 1968 for trial to be held on July 1, 1968. Appellant obtained his first continuance on November 22, 1968 and trial was reset for December 5, 1968.

Recent developments in the law relative to a suspect's right to a speedy trial were noted in Smeltzer v. State (1970), Ind., 258 N.E.2d 647. To further clarify the law in this area we would like to here reiterate and expand on the principals there enunciated. The Sixth Amendment right to a speedy trial has been regarded as one of the most basic rights preserved by the Constitution. Klopfer v. North Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1. As noted in the case of United States v. Ewell, (1966), 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627, the guarantee:

'* * * is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.' 383 U.S. at 120, 86 S.Ct. at 776, 15 L.Ed.2d at 630.

The court in Ewell further noted that the right was relative and dependent upon the circumstances, since it was felt that:

'A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself.' 383 U.S. at 120, 86 S.Ct. at 776, 15 L.Ed.2d at 631.

Four factors have generally been considered, pertinent by the federal courts in determining whether the right has been denied: length of delay, reason for delay, prejudice to the defendant and waiver by the defendant. U.S. ex rel. Von Cseh v. Fay (2d Cir. 1963) 313 F.2d 620; Buatte v. U.S. (9th Cir. 1965) 350 F.2d 389; U.S. ex rel. Solomon v. Mancusi (2d Cir. 1969) 412 F.2d 88.

Since the case of Klopfer v. North Carolina, supra, has declared the sixth amendment right to a speedy trial enforceable against the states under the fourteenth amendment, there can be no doubt but what the federal standard, as heretofore outlined, constitutes a minimal standard for the protection of a state defendant's right. In Indiana, however, a defendant's right to a speedy trial, grounded on our own constitutional mandate requiring justice to be administered speedily, has been interpreted as requiring a defendant to be brought to trial within a specified time period. The implementation of this right is currently articulated in the new rules of criminal procedure which read in pertinent part 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.

(B) 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 fifty (50) judicial 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 fifty (50) judicial days because of the congestion of the court calendar. Provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule.

(C) Defendant on recognizance. No person shall be held by recognizance to answer an indictment or affidavit, without trial, for a period embracing more than one (1) year continuously from the date on which a recognizance was first taken therein; but he shall be discharged except as provided by subdivision (A) of this rule.

(D) Discharge for delay in trial--When may be refused--Extensions of time. If when application is made for discharge of a defendant under this rule, the court be satisfied that there is evidence for the state, which cannot then be had, that reasonable effort has been made to procure the same and there is just ground to believe that such evidence can be had within ninety (90) days, the cause may be continued, and the prisoner remanded or admitted to bail; and if he be not brought to trial by the state within such additional...