Hornaday v. State, 49A02-9301-PC-2

Docket NºNo. 49A02-9301-PC-2
Citation639 N.E.2d 303
Case DateAugust 22, 1994
CourtCourt of Appeals of Indiana

Page 303

639 N.E.2d 303
John Lee HORNADAY, Appellant-Petitioner,
STATE of Indiana, Appellee.
No. 49A02-9301-PC-2.
Court of Appeals of Indiana,
Second District.
Aug. 22, 1994.
Rehearing Denied Oct. 5, 1994.
Transfer Denied Nov. 30, 1994.

Page 305

Susan K. Carpenter, Public Defender, John A. England, Deputy Public Defender, Indianapolis, for appellant.

Pamela Carter, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee.


John Lee Hornaday appeals the denial of his petition for post-conviction relief from his conviction of robbery, a Class B felony. 1 The basis of Hornaday's appeal is that the Marion Superior Court lacked jurisdiction to try the case. This seemingly simple contention presents many issues for our review which we state as:

I. Whether the 70-day time limit prescribed by Ind.Crim.R. 4(B) runs anew from the filing of a new charge where the State has dismissed and refiled charges against a defendant;

II. whether the 70-day period prescribed by Ind.Crim.R. 4(B) began anew from the date of Hornaday's request for continuance and renewed motion for a speedy trial;

III. whether the running of the 70-day period prescribed by Crim.R. 4(B) is suspended between the State's dismissal and refiling of new charges where the defendant continues to be imprisoned after dismissal;

IV. whether Hornaday waived his right to a speedy trial;

V. whether the trial court properly denied Hornaday's motion for dismissal;

VI. whether a violation of Crim.R. 4(B) divests a trial court of jurisdiction on a refiled charge;

VII. whether Hornaday was deprived of his constitutional right to a speedy trial;

VIII. whether the deprivation of a defendant's constitutional right to a speedy trial divests a trial court of jurisdiction on a refiled charge?

Hornaday allegedly committed the instant crime while on Regulated Community Assignment 2 (RCA) from the Department of Correction (DOC) in whose custody he was serving a prison sentence upon a prior robbery conviction. Hornaday was arrested on December 7, 1986 and was formally charged in Marion Superior Court, Criminal Division One, on December 9 with two counts of attempted murder, a Class A felony, robbery, a Class A felony, and criminal recklessness, a Class D felony. 3 Upon Hornaday's request for a speedy trial, trial was set for January 7, 1987, within the 70-day speedy-trial period prescribed by Crim.R. 4(B).

Ten days after his arrest, the DOC conducted a parole revocation hearing at which Hornaday's parole and credit time on the prior conviction were revoked as a result of the charges against him.

On December 30, 1986, Hornaday requested a continuance from the January 7 date while renewing his request for a speedy trial. Accordingly, trial was set for February 2, 1987. On that date, the court, over defendant's objection, granted the State's motion to dismiss the charges.

Subsequently, in September of 1987, almost eight months after his arrest, the State secured a grand-jury indictment against Hornaday filed in Marion Superior Court, Criminal Division One, charging him with robbery, a Class A felony, stemming from the same occurrence. Trial on this new charge was set for November 9, 1987. Hornaday moved to dismiss the renewed charge on November 4, 1987 alleging that it was time-barred by Crim.R. 4(B). The trial court denied the motion.

On November 12, 1987, three days into the trial, Hornaday requested permission to

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withdraw his plea of not guilty; on December 9, 1987, the court accepted Hornaday's guilty plea to robbery as a Class B felony.

Hornaday remained incarcerated from December 17, 1986, the date of his parole revocation, to and including his guilty plea on December 9, 1987. Because of the pending charges, Hornaday was incarcerated beyond his regularly-scheduled parole date of March 26, 1987, on the prior conviction. 4


I. Dismissal and Refiling

Hornaday argues that where defendant has made a speedy-trial motion, the 70-day time limit does not start anew when the State dismisses and refiles the charge. 5 We agree.

There is a conflict among the decisions from various districts of this Court upon this issue. 6

In Fink v. State (1984) 4th Dist.Ind.App., 469 N.E.2d 466, Fink was incarcerated upon a charge of burglary. Fink moved for a speedy trial. On the date set for trial, and before the 70-day limit had expired, the State simultaneously dismissed and refiled the charges. Because of the simultaneous dismissal and refiling, Fink was never released from jail. Fink made a new speedy-trial motion on the renewed charges. The State argued that once the original charges had been dismissed and refiled, a new 70-day period began to run from Fink's second speedy-trial motion. Our Fourth District disagreed, holding that "an incarcerated defendant's invocation of the speedy trial rule may not be defeated by the simultaneous dismissal and refiling of related charges ... Otherwise, if the state may at any time within the year prescribed by C.R. 4(C) abrogate the defendant's speedy trial motion simply by dismissing and refiling identical or related charges, we fail to discern the value of C.R. 4(B)." Id. at 468-69

The State cites Shields v. State (1983) 1st Dist.Ind.App., 456 N.E.2d 1033 in support of its argument that after dismissal and refiling, a new 70-day period starts but only if defendant files a new speedy trial motion. In Shields, the court held that when the State dismissed and refiled charges, "a whole new action began" and that the 70-day period would begin to run anew should Shields move for a speedy trial on the new charges. Id. at

Page 307

1037. Under Shields, the State could dismiss charges against a defendant on the 69th day of the speedy-trial period, release him, and then rearrest him the following day on refiled charges. Shields would allow the State to hold a defendant for several 70-day periods, neatly circumventing the statute. 7 In fact, our Supreme Court recognized this danger with regard to the six-month limitation of Crim.R. 4. The Court stated that the rule should not be interpreted to "enable the state to hold a prisoner just short of six months, release him and then on re-arresting the same man on the identical charge hold him for another period of time just short of the six months." Majors v. State (1969) 252 Ind. 672, 251 N.E.2d 571, 573.

This court expressed its preference for Fink 's reasoning in Phelps v. State (1989) 2d Dist.Ind.App., 532 N.E.2d 619, in which the State dismissed and refiled charges against Phelps before the 70-day period had expired. We held that Phelps' speedy-trial motion related back to the original charge because the statute states that "each and every day after the filing of such motion for early trial shall be counted" in computing the 70-day period. Id. at 620, quoting Crim.R. 4(B)(2). Seventy days from Phelps' arrest was July 1, 1986. Even though the State dismissed and refiled the charges and Phelps renewed his speedy-trial motion, the State still had only until July 1, 1986 to bring Phelps to trial. In disagreeing with the result reached in Shields we note that the author of Shields concurred in Phelps. We reiterate our position as stated in Phelps.

The United States Supreme Court has held that the federal Speedy Trial Act, upon which our rule is patterned, "is designed to minimize the possibility of lengthy incarceration prior to trial...." United States v. MacDonald (1982) 456 U.S. 1, 7, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696. The purpose of our speedy-trial rule is best served if the 70-day period begins to run from the filing of the first charge and does not start anew on a defendant's speedy-trial motion on the refiled charge.

Our holding today comports with our own Supreme Court's position regarding Crim.R. 4(C) and 4(A). In several cases, our Supreme Court has stated that the one year period of Crim.R. 4(C) does not start anew with the refiling of dismissed charges. Young v. State (1988) Ind., 521 N.E.2d 671, 673; Burdine v. State (1987) Ind., 515 N.E.2d 1085, 1090; Bentley v. State (1984) Ind., 462 N.E.2d 58. "When identical charges are refiled, they are regarded as if no dismissal occurred, or as if the subsequent charges were filed on the date of the first charges." Young at 673. "[T]he dismissal and refiling of the same charge does not toll the one-year period within which a defendant must be brought to trial...." Burdine at 1090. "[W]hen an identical charge is refiled, it must be regarded as if there had been no dismissal of the first affidavit, or as if the second affidavit were filed on the same date as the first." Bentley at 59. See also Majors, supra.

II. Continuance

Hornaday moved for a speedy trial on December 10, 1986 and trial was scheduled for January 7, 1987. Hornaday moved for a continuance on December 30 while renewing his speedy-trial request. As a result, trial was rescheduled for February 2, 1987, twenty-six days after the vacated date. Hornaday argues that the speedy-trial period began running anew from December 31, the day after his renewed motion. Accordingly, the 70-day period would expire on March 10, 1987. Hornaday has miscalculated because the speedy-trial period does not start anew when a defendant renews his speedy-trial motion. Young v. State, supra, 521 N.E.2d at 673. Under Crim.R. 4, a defendant is charged with any delay caused by his actions. Id. Where a defendant seeks a continuance, he is charged with the time between the vacated trial date and the rescheduled trial

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date. Id. Delays chargeable to a defendant "act only to extend the time limitation by the amount of the delays...." Back v. Starke Circuit Court (1979) 271 Ind. 82, 390 N.E.2d 643, 644. Accordingly, the 70-day period began to run with Hornaday's original motion, was extended 26 days due to his delay, and was due to expire on March 16, 1987. See n. 4, supra.

III. Tolling

Under Crim.R...

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  • Sweeney v. State, 10S00-9603-CR-231
    • United States
    • Supreme Court of Indiana
    • December 18, 1998
    ...charges does not reset the speedy trial clock--it merely tolls it for the actual days between dismissal and refiling. Hornaday v. State, 639 N.E.2d 303, 307 (Ind.Ct.App.1994). See Goudy v. State, 689 N.E.2d 686, 691 (Ind.1997); Young v. State, 521 N.E.2d 671, 673 (Ind.1988). However, the sp......
  • Payne v. State, 49A02-9405-CR-00288
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    • Court of Appeals of Indiana
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    ......4(B). See Hornaday v. State (1994) 2d Dist.Ind.App., 639 N.E.2d 303, 306-07, trans. denied; Phelps v. State (1989) 2d Dist. Ind.App., 532 N.E.2d 619, 620-21; Fink v. ......
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