Gamblin v. State
| Decision Date | 26 March 1991 |
| Docket Number | No. 82A04-8912-CR-548,82A04-8912-CR-548 |
| Citation | 568 N.E.2d 1040 |
| Parties | Glenn Keith GAMBLIN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. 1 |
| Court | Indiana Appellate Court |
James E. Rode, Evansville, for defendant-appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for plaintiff-appellee.
Defendant-appellant Glenn Keith Gamblin appeals his convictions of four counts of accepting payment for labor or materials subject to outstanding indebtedness (accepting payment), Class D felonies, 2 and five counts of theft, also Class D felonies. 3 We affirm in part and reverse in part.
Gamblin presents the following issues for our review:
I. Whether the trial court erred in denying Gamblin's motion for discharge on Counts 7-18 pursuant to Ind.Crim.Rule 4.
II. Whether the trial court erred in instructing the jury on the elements of theft.
III. Whether the trial court erroneously instructed the jury concerning the elements of accepting payment.
IV. Whether there was sufficient evidence to sustain the convictions of accepting payment. 4
In October of 1987, Gamblin was charged with three counts of accepting payment. 5 These charges were dismissed by the State on October 10, 1988. On December 22, 1988, a 19 count Information was filed against Gamblin. All of the charges resulted from transactions involving Gamblin and five different individuals. Basically, Gamblin would contract to build a home, begin building the home, and then quit working on the home before completion. The homeowners would then incur additional expenses to finish building the home. In addition, Gamblin had not paid some of the subcontractors or others who worked on the home or furnished materials. The homeowners were thus liable for several of Gamblin's unpaid bills.
Gamblin was found guilty by a jury of four counts of accepting payment regarding three victims, and five counts of theft regarding five victims. He was sentenced to a total of fifteen years in prison. Gamblin appeals.
Gamblin first argues it was error for the court to deny his motion for discharge on counts 7-18 of the Information. Gamblin contends he was not tried within one year of his arrest, and thus he must be discharged pursuant to Ind.Crim.Rule 4(C). Crim.R. 4(C) provides in part:
No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever 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....
Gamblin was originally charged with three counts of accepting payment on October 27, 1987. These charges were dismissed in October of 1988, and a new set of charges was filed on December 22, 1988. Gamblin contends counts 7-18 of the new Information should be considered identical to the original three charges for purposes of Crim.R. 4(C). We agree.
The dismissal and refiling of the same charge does not toll the one-year period within which a defendant must be brought to trial under Crim.R. 4(C). Burdine v. State (1987), Ind., 515 N.E.2d 1085. In addition, as the State acknowledges, after a criminal charge has become time-barred under Crim.R. 4(C) and the defendant has been discharged or is eligible for discharge pursuant to the rule, the State may not subject the defendant to a related charge growing out of the same transaction, incident, events, or set of facts, when those facts had occurred and were known or should have been known to the State and could have been joined with the initial charge. 6 State v. Tharp (1980), Ind.App., 406 N.E.2d 1242. In this case, Gamblin was initially charged with three counts of accepting payment against victims Julian, Stallins, and Billings. Counts 7-18 of the second Information charged Gamblin with accepting payment and theft occurring in the same time frame against the same victims, Julian, Stallins, and Billings. These are charges which are either identical to the original three counts or are charges which should have been brought at the time of the original filing because the charges arose out of the same transactions or occurrences. The State does not argue otherwise. The time period for Crim.R. 4(C) thus began to run on October 30, 1987, when Gamblin was arrested on the initial charges, and we must determine whether Gamblin was brought to trial within the proper time period.
The following timetable is a chronicle of the relevant court activity:
October 27, 1987 Gamblin charged with the original three counts.
October 30, 1987 Gamblin arrested for the original three counts.
November 18, 1987 Trial set for March 7, 1988.
February 17, 1988 State's motion to vacate trial date granted; trial date reset for May 9, 1988.
April 19, 1988 State's motion for continuance granted.
May 9, 1988 Trial reset for July 11, 1988.
June 22, 1988 State's motion to vacate trial date granted.
July 11, 1988 Trial reset for October 24, 1988.
October 10, 1988 State's motion to dismiss the charges granted.
December 22, 1988 Gamblin charged with 19 counts.
December 29, 1988 Gamblin arrested for the 19 counts.
January 6, 1989 Trial set for March 8, 1989.
January 13, 1989 State's motion to vacate trial date granted; trial date reset for April 17, 1989.
February 8, 1989 Court appoints counsel for Gamblin.
March 7, 1989 Gamblin files motion for discharge pursuant to Crim.R. 4(C).
March 28, 1989 Court takes motion under advisement.
April 6, 1989 State responds to motion.
April 17, 1989 Trial reset for July 10, 1989.
June 12, 1989 Trial court denies Gamblin's motion to dismiss.
July 10, 1989 Trial held.
The time period within which a defendant must be brought to trial is extended only "where a continuance was had on [the defendant's] motion, or the delay was caused by [the defendant's] act, or where there was not sufficient time to try him during such period because of congestion of the court calendar...." Crim.R. 4(C). The State argues the delays in this case were all attributable to Gamblin. The record does not support the State's contention. Every delay was caused by the State. The State moved to continue the trial date once, and moved to vacate the trial date three times. The State argues because Gamblin did not object to these motions he thus acquiesced in them and the delay is chargeable to him, citing Burdine, supra, and Alford v. State (1988), Ind.App., 521 N.E.2d 1353 for this proposition. In Burdine, however, the delay was attributable to the defendant because he sought at least two continuances and attempted to plead guilty which delayed the trial date. In Alford, the delay was charged to the defendant when the trial date was continued pending the defendant's filing of a motion to suppress. Alford was held to have acquiesced in the delay because he knew a trial date would not be set until his motion was filed. Alford, supra. These cases did not charge the delay from the State's motion for a continuance to the defendant.
If Gamblin had joined in the motion for a continuance and thus made it his motion to continue, then under Crim.R. 4(C) the delay would have been charged to him. See State ex rel. O'Donnell v. Cass Superior Court (1984), Ind., 468 N.E.2d 209 (). A failure to object to a continuance does not equal an agreement of the parties to continue the cause. Failing to object to the State's motion for a continuance does not convert the State's motion into Gamblin's motion for continuance. 7
Gamblin was arrested on October 30, 1987, and the State had until October 30, 1988 to bring him to trial, unless Gamblin moved for a continuance or otherwise caused a delay or there was court congestion which prevented Gamblin from being tried within the proper time period. Crim.R. 4(C). The State dismissed the charges on October 10, 1988, while it still had 20 days left in the one year period. The charges were refiled on December 22, 1988. The State is not charged with the period between the dismissal and refiling of the charges. Young v. State (1988), Ind., 521 N.E.2d 671. Gamblin was arrested on the second set of charges on December 29, 1988, and the time again began to run on this date. See Crim.R. 4(C) (). The State then had 20 days from December 29, 1988, or until January 18, 1989, to bring Gamblin to trial. On January 6, 1989, the trial was set for March 8, 1989, well past January 18, 1989. Gamblin did not object to this trial date set outside the one year period. Gamblin had a duty to alert the trial court when the trial date was set beyond the prescribed limits of Crim.R. 4. Decker v. State (1988), Ind., 528 N.E.2d 1119; Butts v. State (1989), Ind.App., 545 N.E.2d 1120. Gamblin is thus deemed to have acquiesced in this date. Decker, supra. Likewise, he is deemed to have acquiesced in the April 17, 1989, trial date set by the court in January because he did not object to this date which was beyond the one year period.
Gamblin cannot be said to have acquiesced in the July 10, 1989, trial date, however. In fact, he had pending a motion for discharge based upon Crim.R. 4(C) which should have alerted the trial court to try Gamblin with all due haste in the time remaining. This motion, filed on March 7, 1989, was not ruled on by the trial court until June 12, 1989, outside the April 17, 1989 trial date in which Gamblin had acquiesced. There was no indication that Gamblin caused the delay of the trial until July 10, 1989, or that court...
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