Phelps v. State

• Citation: 532 N.E.2d 619
• Decision Date: 19 January 1989
• Docket Number: No. 49A02-8703-CR-86,49A02-8703-CR-86
• Parties: Charles PHELPS, Appellant (Defendant Below), v. STATE of Indiana, Appellee.
• Court: Court of Appeals of Indiana

Page 619

532 N.E.2d 619 Charles PHELPS, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee. No. 49A02-8703-CR-86. Court of Appeals of Indiana,
Second District. Jan. 19, 1989.

Page 620

Richard D. Gilroy, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Wendy L. Stone, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Charles Phelps appeals his conviction of robbery and confinement.

We affirm.

Phelps presents two issues upon appeal. He contends that his right to an early trial was denied and that the evidence was insufficient to support the verdict.

I

The facts pertinent to the early trial issue are as follows: Phelps requested an early trial on April 1, 1986, and trial was set for May 19. On May 14, Phelps was granted a continuance until June 9. On that date, the State responded to the denial of its request for continuance by simultaneously dismissing and refiling its charges against Phelps. At the initial hearing on June 11 upon the refiled charges, Phelps requested an early trial date and trial was set for August 4. Then on July 8, he moved to dismiss the charges pursuant to Ind.Rules of Criminal Procedure, Criminal Rule 4 which provides for the discharge of a defendant if he is not brought to trial within seventy days of a motion for an early trial. The trial court denied the motion on July 18. At pre-trial conference on July 30, Phelps waived his request for speedy trial and requested a continuance. It was granted and trial was rescheduled for September 8. The trial on September 8 and 9 resulted in a verdict of guilty of robbery and confinement.

Criminal Rule 4(B)(1) provides in part:

"If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar."

In computing the seventy calendar days from a motion for an early trial, "each and every day after the filing of such motion for early trial shall be counted." C.R. 4(B)(2). Phelps filed his motion for an early trial on April 1, 1986. Thus, the original seventy-day period for trial expired on June 10. However, this period was extended. In Brown v. State (1981) 275 Ind. 441, 417 N.E.2d 333, 336, our Supreme Court held that the time limitation under C.R. 4(B)(1) "shall be extended by the period of any delay caused by defendant's acts." See also State ex rel. Cox v. Superior Court of Madison County (1983) Ind., 445 N.E.2d 1367; Vaughan v. State (1984) 4th Dist. Ind.App., 470 N.E.2d 374, trans. denied. Phelps requested and was granted a continuance which delayed trial from May 19 until June 9. Extending the original seventy-day period by the length of this delay, the new statutory period expired on July 1, 1986.

When the State dismissed and refiled its charges against Phelps on June 9 after being denied a continuance, Phelps contends that the State was merely seeking to avoid the statutory period for an early trial. We agree that the State may not use such tactics to delay trial. However, we also note that defendants may not elude prosecution where the State unavoidably must delay trial, e.g., to secure the attendance of a missing witness. C.R. 4(D); Fink v. State (1984) 4th Dist. Ind.App., 469

Page 621

N.E.2d 466, reh....