Gross v. State

• Decision Date: 25 February 1972
• Docket Number: No. 471S120,471S120
• Parties: George GROSS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 583

278 N.E.2d 583 258 Ind. 46 George GROSS, Appellant,
v.
STATE of Indiana, Appellee. No. 471S120. Supreme Court of Indiana. Feb. 25, 1972.

Palmer K. Ward, Indianapolis, for appellant.

[258 Ind. 47] Theodore L. Sendak, Atty. Gen., A. Frank Gleaves, III, Deputy Atty. Gen., for appellee.

HUNTER, Justice.

This is an appeal by George Gross, appellant (defendant below), from a conviction

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for First Degree Burglary. The sole issue presented to this Court is whether appellant was denied an early trial provided in CR. 4(b), and, in turn, whether the trial court erred in overruling his motion for discharge under the rule.

The facts pertaining to this issue are as follows. June 17, 1970, appellant was charged with the crime of first degree burglary. On June 19, 1970, appellant's counsel entered an appearance, appellant waived arraignment and entered a plea of not guilty. On August 14, 1970, appellant moved for a continuance and the motion was granted. August 18, 1970, appellant, by letter, requested an early trial and the court set trial for September 14, 1970. On September 2, 1970, appellant's privately employed counsel withdrew. Then, September 14, 1970, the day set for trial, appellant appeared in court without counsel. The trial court then appointed counsel for appellant and continued the case until September 28, 1970, in order to allow the new counsel time to prepare his case. On September 28, 1970, the State moved for a continuance which was granted and trial was set for November 2, 1970. October 28, 1970, the appellant filed a written waiver of jury trial. On November 2, 1970, the State filed a written motion for continuance under CR 4(D) which was granted. Trial was set for November 30, 1970, to which appellant objected, again demanding an early trial. The objection was overruled. On November 9, 1970, appellant wrote the trial court requesting discharge under CR. 4(B) which was denied. The trial court's basis for denial was that appellant's appearance in court without counsel on September 14, 1970, was a delay chargeable to defendant. On November 30, 1970, the case was called for trial. Appellant moved for discharge which was denied and trial commenced.

[258 Ind. 48] CR. 4(B) reads as follows:

'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. Rpovided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule.' (Our emphasis.)

The first question which must be answered is whether the delay which arose when new counsel was appointed by the trial court and the court continued the cause for two weeks to enable counsel to properly prepare his case was a delay caused by the appellant's act. Appellant's privately appointed counsel withdrew on September 2 and on September 14, the day set for trial, appellant appeared without counsel. Apparently appellant was willing to be tried without the aid of counsel but the judge correctly decided that the appellant should be represented. Art. 1, § 13 of the Constitution to Indiana guarantees a defendant the right to counsel.

'The fundamental right of defendant in a criminal case to have competent counsel assist him in his...