Gregor v. State
| Decision Date | 28 December 1994 |
| Docket Number | No. 55A05-9404-CR-139,55A05-9404-CR-139 |
| Citation | 646 N.E.2d 52 |
| Parties | Gina GREGOR, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
We consolidate and restate the issues raised by Gina Gregor on appeal as whether the trial court erred in granting the State's motion to correct error.
On June 22, 1993, the State charged Gregor by Information with battery causing bodily injury, a Class A misdemeanor. The Information alleged that on June 18, 1993, Gregor struck another person resulting in injuries.
A bench trial was originally set for September 9, 1993. Gregor appeared on that date with counsel prepared for trial. The State requested a continuance, citing lack of preparation and the unavailability of the victim, who was the State's principal witness and who had recently undergone surgery. The trial court granted the continuance over Gregor's objection and rescheduled the trial for November 15, 1993.
The deputy prosecutor originally assigned to the case was on vacation on November 15, 1993, and another deputy prosecutor was assigned to handle the case. The victim appeared at the prosecutor's office on the morning of the trial date. The deputy prosecutor talked with the victim and reviewed the file. He decided that he was not prepared to try the case and that the testimony of additional witnesses was needed, none of whom had been subpoenaed. Planning to have the trial continued, the deputy prosecutor sent the victim home.
At the time trial was scheduled to commence, Gregor again appeared in court with counsel. The deputy prosecutor also appeared and requested a continuance, citing lack of preparation and the unavailability of witnesses. The deputy prosecutor explained the circumstances to the court, that the victim had been present in his office earlier but was sent home, and that he would need to subpoena additional witnesses.
Gregor objected, arguing that the State was seeking a continuance on the same grounds on which it had based its previous motion to continue. When the deputy prosecutor explained that it was not possible to summon the victim back into court for trial that day, the court dismissed the case with prejudice.
The State filed a motion to correct error, alleging that the dismissal should have been without prejudice. After a hearing, the court granted the State's motion. The State refiled charges against Gregor, and a new trial is pending.
A trial court has wide discretion to correct errors and to grant new trials. De Vittorio v. Werker Bros., Inc. (1994), Ind.App., 634 N.E.2d 528, 530; Ind.Crim.Rule 16(B). We will reverse only for an abuse of discretion. Id. An abuse of discretion will be found when the trial court's action is against the logic and effect of the facts and circumstances before it and the inferences which may be drawn therefrom. Id. An abuse of discretion also results from a trial court's decision that is without reason or is based upon impermissible reasons or considerations. Id.
The situation presented in this appeal is similar to the case of Dennis v. State (1980), Ind.App., 412 N.E.2d 303. In Dennis, the accused was charged with a Class C felony. Trial was scheduled for January 28, 1980. On the date of trial, the accused appeared with counsel prepared for trial. The State requested a continuance, citing lack of preparation and the absence of the victim, who was the State's principal witness. The prosecutor had believed that the trial was not going to begin on the scheduled date because another criminal trial was also scheduled for that day. The prosecutor had instructed the victim, who lived in Missouri, to not make the trip to Indiana to appear for trial.
The accused moved for a dismissal, which the court granted without designating whether it was with prejudice. When the State refiled charges on the next day, the accused moved for dismissal. The trial court denied the motion to dismiss, concluding that the previous dismissal had been without prejudice.
In affirming the trial court's conclusion, this court stated:
The general rule in criminal prosecutions is that a dismissal of the charge will not bar a renewal of proceedings unless the substantial rights of the accused have been prejudiced, as where speedy trial is found to have been denied or jeopardy has attached in the first prosecution.
This rule was bolstered by our opinion in State v. Joyner (1985), Ind.App., 482 N.E.2d 1377. In Joyner, the State moved to amend a defective Information on the date of trial. When the trial court denied the motion, the State moved to dismiss the action so it could refile the charges. The accused objected, stating that he would be prejudiced by a dismissal because he had prepared for trial and had subpoenaed witnesses. The trial court agreed and dismissed the case with prejudice.
Finding that the substantial rights of the accused had not been prejudiced, we stated:
The inconvenience and financial hardship in Joyner's case, while regrettable do not prejudice his substantial rights. There is no evidence in the record that a fair trial was impossible. Joyner claims he and his witnesses would be inconvenienced, but there is no evidence to suggest that the witnesses would not be available for trial. Nor does the fact that Joyner had expended energy in preparation preclude the opportunity for fair trial.
In its motion to correct error, the State presented this general rule to the trial court. The record is clear that the trial court then believed that it did not have the authority to dismiss the case with prejudice. In granting the State's motion to...
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