Newland v. State, 268S23
Citation | 250 Ind. 512,236 N.E.2d 45 |
Decision Date | 22 April 1968 |
Docket Number | No. 268S23,268S23 |
Parties | Richard Jewell NEWLAND, Petitioner, v. STATE of Indiana, Respondent. |
Court | Indiana Supreme Court |
Robert H. VanBrunt, Indianapolis, for petitioner.
John J. Dillon, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., for respondent.
This matter was initiated by the filing of a verified petition for a writ of certiorari. The issue before this court is whether the trial court erred in refusing permission to petitioner to file a belated motion for a new trial.
Under the rules of the Supreme Court of Indiana, Rule 2--40 is applicable. The pertinent part thereof, reads as follows:
* * *'
In the recent case of Langley v. State of Indiana (Ind.1968), 232 N.E.2d 611, Chief Justice Lewis, citing Rule 2--40 supra, pointed out that the determination of whether due diligence has been established, rests in the sound discretion of the trial court. In the Langley case, supra, the case of Barrett v. State of Indiana (1952) 230 Ind. 533, 105 N.E.2d 508, was cited and the rule therein endorsed which is set forth in the following quotation:
In a petition for permission to file a belated motion for a new trial, the trial court has discretion in ruling upon the petition and may be reversed only for abuse of that discretion, and this rule applies when the trial judge determines whether the petitioner exercised due diligence in filing the petition. Barrett v. State of Indiana, supra.
In the petition for certiorari petitioner has not shown how the trial judge abused his discretion. Furthermore, the petitioner's mere allegation that he, in fact, used diligence is insufficient in the face of the previous determination of the trial judge.
The petitioner has cited the case of Commonwealth v. Nassar (1966) 351 Mass. 37, 218 N.E.2d 72. A review of the holding of the court in this case does not bear out the purpose for which it was cited. In the Commonwealth v. Nassar case, supra, the court, under a specific Massachusetts statute, stated:
'In a capital case this court has 'the whole case for its consideration of the law and the evidence,' and may consider the matter which the defendant attempted to raise by his belated assignment of error.'
This decision was based on the specific statutory provisions, and is not applicable to the case...
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