Lloyd v. State

• Decision Date: 08 June 1966
• Docket Number: No. 30518,30518
• Parties: Willie Lee LLOYD, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 43

217 N.E.2d 43

247 Ind. 499

Willie Lee LLOYD, Appellant, v. STATE of Indiana, Appellee.

No. 30518.

Supreme Court of Indiana.

June 8, 1966.

Duge Butler, Jr., Butler, Brown, Hahn & De Witt, Indianapolis, for appellant.

Edwin K. Steers, former Atty. Gen., John J. Dillon, Atty. Gen., Frederick J. Graf, Deputy Atty. Gen., for appellee.

JACKSON, Judge.

Appellant was charged by indictment in the court below with the crime of second degree burglary and auto banditry. The appellant was arraigned and entered a plea of not guilty to the indictment. Trial was had to the court, without the intervention of a jury. The court found the appellant not guilty on the charge of auto banditry and guilty on the charge of second degree burglary.

The record before us discloses some unusual features we feel should be discussed. This case came on for trial in the lower court on June 26, 1962. After having heard all the evidence the court found appellant guilty of Second Degree Burglary as charged in count one (1) of the indictment, that his age is 22 years, ordered pre-sentence investigation and set sentencing for August 10, 1962, at 2:00 p.m., permitting the appellant to remain free on the present bond pending sentence.

Thereafter on July 25, 1962, appellant, by counsel, filed his timely motion for a new trial. Such motion omitting heading, formal parts and signature reads as follows:

'1) The decision of the Court is not sustained by sufficient evidence.

'2) The decision of the Court is contrary to law.

'3) Error of law occurring at the trial, as follows:

'a. The Court erred in admitting into evidence, over the objection of the Defendant, State's Exhibit #1.

'b. The Court erred in overruling Defendants motion at the close of the State's evidence and at the close of all of the evidence for a finding for the defendant on the charge of second degree burglary.'

Thereafter on August 10, 1962, appellant appeared in person and by counsel for sentencing. The pre-sentence investigation was filed by the Probation Department. The court then sentenced appellant to the Indiana Reformatory for not less than two years nor more than five years, and overruled appellant's motion for a new trial. The court then set the appeal bond for defendant at $3,000.00, the bond was duly filed and spread of record.

Up to this time it appears from the transcript that this was an orderly and ordinary appeal in due course. The picture now changes with the filing, by appellant, in this court on January 3, 1964, a pleading denominated a 'Motion for Belated Appeal'. Such motion, inter alia, recites the following facts:

'4. On August 10, 1962, the Court overruled defendant's motion for a new trial and pronounced judgment that defendant be sentenced to the Indiana Reformatory for not less than two (2) nor more than five (5) years. That thereafter, and on or about the first of October, 1962, the defendant left the jurisdiction of the Court.

'5. Sentencing having been set by the Court, the Honorable Herbert Backer, Special Judge presiding, set December 6, 1962, for sentencing. On that date, the defendant herein was called three (3) times, his appeal bond forfeited and his re-arrest ordered.

'6. Defendant, during the time he was absent from this jurisdiction, lived in California with his wife, two (2) minor children, his wife who was to become pregnant and have their third (3rd) child in December, 1963.

'7. That on or about November 18, 1963, at approximately one (1) year after having left the jurisdiction of the Court, this defendant surrendered himself to the Sheriff of Marion County.

'8. That this defendant, by his then counsel, did all things except file the transcript of record by way of perfecting an appeal.

'9. That all steps toward perfecting his appeal for this Honorable Court were taken prior to his leaving the jurisdiction and thereby becoming a fugative.

'10. This defendant believes he has a meritorious cause for appeal and prays that this Court exercise its discretion and grant leave for filing this belated appeal so that substantial justice can be given this defendant.

'WHEREFORE, the defendant prays that this Court grant this petition, ordering the Clerk of this court to accept the transcript of record within thirty (30) days from date and that defendant's appeal be reinstated in accordance with the law and rules of this court.'

The record in this court in pertinent part is as follows:

'1964, Jan. 3 Appellant's motion for Belated Appeal (5) Certified copy of Motion for New Trial (1) Certified copy of Motion to set amount of appeal bond (1) Certified copy of sentencing setting appeal bond. Motion for new trial overruled (1)

'1964, Feb. 5 Acknowledgment of Service (2)

'1964, Feb. 6 Appellant's petition for extension of time to file Belated Appeal granted to and including March 9, 1964. Landis, C.J.

'1964, Mar. 9 Appellant's petition for extension of time for filing Transcript and Assignment of Errors (2) Acknowledgment of Service (2)' (Note stamp on back of this petition indicates this is second petition for extension of time)

'1964, Mar. 10 Appellant's 2nd petition for extension of time to file Transcript and Assignment of Errors granted to and including May 8, 1964. Landis, C.J.

'1964, May 8 Transcript and Assignment of Errors submitted under Rule 2--14.'

We set out the record with the particularity here shown for the reason that a reading of appellant's brief would indicate that in all respects this is a regular appeal, even the answer brief of the Attorney General makes only casual reference indicating otherwise. Page one of the answer brief under 'NATURE OF THE ACTION' reads as follows:

'Appellant's statement of the Nature of the Action is incomplete. It does not show the fact that this appeal is a belated one granted pursuant to an order dated February 6, 1964, issued by the Clerk of this Court.'

Again on page 17 of its answer brief the Attorney General prays 'WHEREFORE, Appellee prays that this belated appeal of a 'twice fleeing' Appellant to dismissed, or, in the alternative, that the judgment of the lower court be affirmed.'

We point out that appellant's original motion for new trial was timely filed, his appeal bond was fixed and appellant was represented by counsel. At this stage in the proceedings appellant, voluntarily fled the jurisdiction of the court, forfeiting his appeal bond and abandoning his appeal...