Kirkland v. State, 0-415

• Court: Indiana Supreme Court
• Writing for the Court: LANDIS; BOBBITT
• Citation: Kirkland v. State, 134 N.E.2d 223, 235 Ind. 450 (Ind. 1956)
• Decision Date: 21 May 1956
• Docket Number: No. 0-415,0-415
• Parties: Wardell KIRKLAND, Petitioner, v. STATE of Indiana, Respondent.

Page 223

134 N.E.2d 223

235 Ind. 450

Wardell KIRKLAND, Petitioner, v. STATE of Indiana, Respondent.

No. 0-415.

Supreme Court of Indiana.

May 21, 1956.

Edwin K. Steers, Atty. Gen., for respondent.

LANDIS, Judge.

This is an original action in which petitioner has asked this court for permission to take a belated appeal from his conviction of armed robbery.

The verified petition states petitioner was tried by jury for the crime of armed robbery, resulting in his conviction on November 26, 1954; that he was sentenced to 10 years' imprisonment in the Indiana State Prison; that on December 16, 1954, petitioner, by counsel, filed his motion for new trial which was denied by the trial court on February 7, 1955.

Petitioner contends that thereafter he was informed by his trial counsel that an appeal would be immediately perfected in his behalf, but such allegation is denied by the State's answer and the affidavit of petitioner's trial counsel. Petitioner says he was left without the services of counsel and that he lost the opportunity of appealing from the Delaware Circuit Court; that petitioner was ignorant of the fact there was a public defender of the State of Indiana until informed by his mother, who had conferred with said public defender that is is impossible for petitioner to perfect his appeal within 90 days of the overruling of the motion for new trial. Petitioner says he has a 'good and meritorious cause of action' existing as to the charge of armed robbery.

Petitioner has attached the affidavit of his mother that petitioner's trial counsel did state he had informed petitioner that an appeal had been taken to the Supreme Court, which allegation is denied by the affidavit of petitioner's trial counsel.

Petitioner further contends he has made a prima facie showing of merit, viz.: that the trial court erred in overruling the motion for new trial by 'eluding the dominant and controlling constitutional questions,' without saying what such constitutional questions are, except that they are raised in the motion for new trial.

The motion for new trial allegedly set forth that manifest error was committed when the jury, after returning a defective verdict, retired to the jury room for further deliberation, having only one form of verdict when they were required to consider all forms of verdict. The State of Indiana has attached the affidavit of the trial judge to the effect that the jury retired originally to the jury room with the three proper forms of verdict; that after deliberating they returned into open court with a signed verdict finding petitioner guilty of robbery, but fixing an indeterminate period of 10-20 years' imprisonment instead of a determinate period required by law; that the trial judge instructed the jury the term of inprisonment on the verdict would have to be for a definite term, and the jury they retired with said form of verdict and later returned into open court with the verdict prescribing said determinate sentence of ten years.

The Indiana statute providing for belated appeals permits 'for good cause shown * * * appeals from a judgment of conviction after the original time for taking an appeal has elapsed.' ¹ Delayed appeals have also been granted independently of the statute; but in any event before a belated appeal can be granted,...