Pillars v. State, PS
| Decision Date | 30 May 1979 |
| Docket Number | No. PS,PS |
| Citation | 390 N.E.2d 679,180 Ind.App. 679 |
| Parties | Robert B. PILLARS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). 409. |
| Court | Indiana Appellate Court |
Harriette Bailey Conn, Public Defender, Marcia L. Dumond, David P. Freund, Deputy Public Defenders, Indianapolis, for appellant.
Theo. L. Sendak, Atty. Gen., Terry G. Duga, Deputy Atty. Gen., Indianapolis, for appellee.
Robert B. Pillars appeals from his conviction on charges of assault with intent to kill, threatening to use a deadly or dangerous weapon, aiming a weapon, and resisting arrest. On appeal he raises two issues for our consideration: whether the trial court erred in denying his motion for discharge under Ind.Rules of Procedure, Criminal Rule 4; and whether the trial court erred when it failed to dismiss three counts which were filed two judicial days before trial. 1
We affirm Pillars' conviction for resisting arrest. We reverse his conviction on the other three charges.
The following chart sets forth the dates and occurrences we have considered in our disposition of this appeal:
May 14, 1976 Alleged crimes occurred
May 17, 1976 Pillars charged with Count I Assault with Intent to Kill
warrant issued; arrest made
May 19, 1976 Pillars files appearance, bond
May 21, 1976 Arraignment continued at Pillars' request.
May 28, 1976 At arraignment, Pillars enters plea of not guilty.
March 3, 1977 Court enters earlier discovery order and sets omnibus
hearing for April 18, 1977.
March 16, 1977 Pillars' attorney files motion to withdraw; hearing set
for April 1, 1977.
April 1, 1977 After hearing, court denies attorney's motion to
withdraw.
April 18, 1977 Omnibus hearing on discovery. At State's request, Pillars
is ordered to make more specific disclosure of his and
his wife's testimony and to disclose their criminal
records.
May 2, 1977 Further omnibus hearing. Jury trial set for May 17, 1977.
May 16, 1977 Court reschedules jury trial for June 7, 1977.
May 27, 1977 Pillars files objection to rescheduling of jury trial.
June 1, 1977 Prosecution moves for continuance of trial due to
unavailability of one of its witnesses. Pillars objects
to grant of continuance. Court takes matter under
advisement, subject to being ruled upon June 3, 1977.
June, 2, 1977 Court reschedules jury trial for August 23, 1977.
August 3, 1977 Pillars files motion for discharge and affidavit.
August 15, 1977 Court holds hearing on motion for discharge; motion
denied.
August 19, 1977 State files informations charging Pillars with Count II:
Threatening to Use a Deadly or Dangerous Weapon; Count
III: Aiming a Weapon; and Count IV: Resisting Arrest.
August 22, 1977 Pillars arraigned on additional charges; he pleads not
guilty and moves to dismiss. State moves for a
continuance of trial due to unavailability of an
essential witness. Court sustains Pillars' objection to
State's motion for further continuance.
August 23, 1977 Jury trial begins.
August 25, 1977 Pillars found guilty on all four counts.
September 27, 1977 Pillars sentenced.
November 23, 1977 Pillars files motion to correct errors.
January 9, 1978 After hearing, court denies motion to correct errors by
written opinion.
I.
In Indiana, a defendant may not be prosecuted for a crime with which he was charged more than a year prior to his trial. CR. 4(C) provides:
Pillars was charged with the crime of assault with intent to kill and was arrested on May 17, 1976. He was finally brought to trial on August 23, 1977. On appeal, he claims his motion for discharge made on August 3, 1977, should have been granted. The State argues that the statutory time limit was extended since part of the delay was caused by Pillars' own acts, and the remainder was ascribed to a congested court calendar.
Our examination of the record indicates that Pillars' motion for discharge should have been granted on the basis of two impermissible delays in the setting of his trial past the statutory time limit.
Originally, the trial court set Pillars' trial for May 17, 1977, exactly one year after Pillars' arrest on the assault charge. However, on May 16, 1977, the court rescheduled the trial for June 7, 1977. On June 2, 1977, the court rescheduled the trial for August 23, 1977. In the interim, the court held a hearing on Pillars' motion for discharge, filed on August 3, 1977.
At the hearing the court noted that during the year following his arrest, three delays were attributable to Pillars: (1) seven days, when Pillars was granted a continuance for the purpose of arraignment; (2) fifteen days, necessitated due to the inability of Pillars' counsel to contact him; and (3) fourteen days, due to Pillars' failure to make complete disclosure pursuant to the court's omnibus order. According to the court's calculations, when delays caused by Pillars were taken into account, the trial date of June 7, 1977 was well within the requirements of CR. 4(C).
As Pillars concedes, the seven-day delay in arraignment could be ascribed to him. However, we are unable to see how the other events relied on by the court constituted delays in Pillars' trial which could be charged against him for the purposes of CR. 4(C).
As the chart, Supra, shows, on March 3, 1977, the trial court entered a discovery order and set an omnibus hearing to be held on April 18. In the meantime, Pillars' counsel filed a motion to withdraw and a hearing was held. The motion was denied on April 1, even before the omnibus hearing was held. Pillars' problems with his attorney in no way affected the date upon which his trial could have been set. See Moreno v. State (1975), Ind.App., 336 N.E.2d 675, 683 at Fn. 10.
Likewise, the State's problems with discovery should not have affected the setting of a trial date. Discovery often continues until the time of trial; clearly, it need not be completed before the court sets a trial date. If any delay was caused, it should be charged to the State. See Griffith v. State (1975), 163 Ind.App. 11, 321 N.E.2d 576.
Taking into account the week's delay that was attributable to Pillars' acts, the trial court should have scheduled his trial on or before May 24, 1977. Instead, on May 16, the trial court rescheduled Pillars' trial for June 7, 1977. The record shows no reason for its action. 2 The trial date was beyond the permissible time limitation contained in CR. 4.
On May 27, 1977, Pillars made his objection to the rescheduling of his trial. There is some question whether the objection was timely. We hold that the objection was timely made.
Normally, a defendant should object as soon as he discovers his trial has been set beyond the limits of CR. 4. In any event, when possible, he must object in time for the court to correct its mistake and schedule the trial within the statutory time period. Otherwise a defendant waives his right to discharge under CR. 4.
In most cases in which we have held that a defendant waived his right to discharge, the defendant knew or should have known of the improper trial date for some time during the period in which he could have been tried, and yet he failed to object. Richardson v. State (1975), 163 Ind.App. 222, 323 N.E.2d 291 (); Bryant v. State (1973), 261 Ind. 172, 301 N.E.2d 179 ().
In the present case, the court rescheduled Pillars' trial on May 16, with no attorneys present. Upon learning of the change in trial date, Pillars' attorney claims he was unable to obtain the docket sheet until May 26, 1977. Upon ascertaining that the court had rescheduled Pillars' trial in violation of CR. 4, Pillars' attorney filed his objection on May 27, 1977.
Clearly, a defendant can not be required to object until he has notice that his trial has been set beyond the statutory time limit. Wilson v. State (1977), Ind.App., 361 N.E.2d 931. In this case, Pillars objected when he ascertained that his trial had been set beyond such time limit. Further, in this case, the expiration of the CR. 4 time limit fell on May 24, only a week after the trial date had been changed. It is unlikely that an earlier objection by Pillars would have enabled the trial court to reschedule his trial within the statutorily proper period. See State ex rel. Wernke v. Super. Ct. of Hendricks Cty. (1976), 264 Ind. 646, 348 N.E.2d 644, 647 (Justice DeBruler's dissenting opinion).
Finally, on June 2, 1977, the trial court acted improperly in again rescheduling Pillars' trial, postponing it until August 23, 1977.
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