Hendricks v. State
| Decision Date | 13 June 1990 |
| Docket Number | No. 64A04-8912-CR-596,64A04-8912-CR-596 |
| Citation | 555 N.E.2d 178 |
| Parties | John HENDRICKS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
G. Anthony Bertig, Law Offices of James V. Tsoutsouris, Valparasio, for appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant, John Hendricks, filed an interlocutory appeal, in which he appeals the trial court's denial of his Motion to Dismiss pursuant to Indiana Criminal Rule 4(C). We reverse.
Whether Defendant's rights have been violated pursuant to Indiana Criminal Rule 4(C).
On May 16, 1988, Defendant was arrested for Theft, a class D felony. Defendant asserts that his rights under Indiana Criminal Rule 4(C) have been violated. The rule states:
(C) Defendant Discharged. 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; 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. Provided further, that a trial court may take note of a congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time. Any defendant so held shall, on motion, be discharged.
The relevant dates and events are as follows:
Defendant's arrest May 16, 1988
] 17 days
Initial Hearing June 2, 1988
]
Original Omnibus Date July 28, 1988 ] 126 days
]
Omnibus Hearing Requested ]
By State October 6, 1988
Omnibus Continued on ] 28 days
Defendant's Motion to
November 3, 1988 November 3, 1988
] 344 days
Court Sets Matter for Trial October 13, 1989
Case Scheduled for Trial ] 11 days
October 24, 1989 October 24, 1989 --------
526 days
Defendant concedes that the twenty-eight (28) days of delay caused by his continuance of the October 6, 1988 omnibus hearing are attributable to him, but asserts that the State is responsible for the rest of the four hundred and ninety-eight (498) day delay.
The original omnibus hearing was set for July 21, 1988, but the hearing was rescheduled for October 6, 1988, at which time Defendant moved for a continuance. State argues that because the record is silent as to what happened at and after the original omnibus hearing date, Defendant should be charged with this period of time as well as the twenty-eight (28) days after the continuance. In support of their argument, State cites Morrison v. State (1989), Ind.App., 542 N.E.2d 564. However, Morrison was recently reversed by the Indiana Supreme Court in Morrison v. State (1990), Ind., 555 N.E.2d 458. In reversing Morrison, the Supreme Court held when the record is silent regarding the reason for the delay, a defendant cannot be held accountable for the delay, and no waiver can be implied. Huffman v. State (1987), Ind., 502 N.E.2d 906; State ex rel. Henson v. Washington Circuit Court (1987), Ind., 514 N.E.2d 838; Pillars v. State (1979), 180 Ind.App. 679, 390 N.E.2d 679. The omnibus date is not a concern of Criminal Rule 4(C), and the State must show actual delay caused by the defendant's act before this time period can be charged against him. Here the State has failed to show Defendant caused the delay. See State v. Smith (1986), Ind.App., 495 N.E.2d 539, 541.
State next argues that the delay should be charged to the defendant due to certain plea negotiations. State concedes that informal plea negotiations do not constitute the abandonment of the right to be tried within one year and that actual delay by the defendant must be...
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...view is reflected in the case law of other jurisdictions that have promulgated rules similar to HRPP 48. See, e.g., Hendricks v. State, 555 N.E.2d 178, 179 (Ind.App.1990) ("[T]he State must show actual delay caused by the defendant's act before [a] time period can be charged against him.");......
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