Schwartz v. State, 29A02-9806-CR-557

• Decision Date: 30 March 1999
• Docket Number: No. 29A02-9806-CR-557,29A02-9806-CR-557
• Citation: 708 N.E.2d 34
• Parties: Nathan E. SCHWARTZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 34

708 N.E.2d 34

Nathan E. SCHWARTZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 29A02-9806-CR-557.

Court of Appeals of Indiana.

March 30, 1999.

Patrick R. Ragains, Smith, Ragains & Cotton Anderson, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Thomas D. Perkins, Deputy Attorney General, Indianapolis, Attorneys for Appellee.

OPINION

RUCKER, Judge

This is an interlocutory appeal from the denial of a motion for discharge under Ind.Crim. Rule 4(C). Appellant-Defendant Nathan Schwartz complains that he was not brought to trial within one year of his arrest or charge and that the delay was not attributable to him. We reverse.

The record shows that on July 27, 1996, Schwartz was charged by information with child molesting as a Class B felony and carrying a handgun without a license as a Class A misdemeanor. He had been arrested the day before. The information alleged that the offenses occurred in Madison County and thus the charges were filed in the Madison Circuit Court. On July 29, 1996, Schwartz apparently ¹ appeared in court wherein the omnibus date was set for September 29, 1996 and a pretrial conference was scheduled for October 16, 1996. After the July 29 date, but before the scheduled omnibus date, counsel entered his appearance on Schwartz' behalf and filed a motion to suppress evidence. On September 9, 1996, the motion to suppress was withdrawn. On that same date an order was entered stating "[t]rial to be set at pretrial conference." R. at 4. The record does not show that either an omnibus hearing was conducted or a pretrial conference held. Rather, the record reveals that on September 3, 1997, the State requested the trial court to set this case for trial. The trial court granted the request and a trial was scheduled for February 17, 1998.

On the morning of trial, after the jury was sworn, Schwartz brought to the court's attention that the alleged child molesting offense occurred in Hamilton County and not Madison County as charged. Thereafter a lengthy discussion ensued between the court, the State, and defense counsel concerning proper venue. Ultimately, over Schwartz' objection the trial court granted the State's motion to amend the child molesting charge to assert that the offense occurred in Hamilton County. Schwartz then moved to transfer venue of the case to Hamilton County. The motion was granted. Three days later Schwartz filed a motion for discharge. After a hearing the trial court denied the motion. In so doing the trial court declared:

Based on what I can see the key to this is you didn't appear for the pretrial conference. The pretrial was set for 10/16/96. On 9/9/96 motion to suppress withdrawn, trial to be set at pretrial conference. There is no entry for the 10/16 so you didn't appear at the pretrial conference. So you have waived your rights.... I am saying since they did not appear for the pretrial the delay is attributable to the defense.

R. at 149-50. After venue of the case was transferred to Hamilton County, Schwartz renewed his motion for discharge. The motion was denied. This interlocutory appeal followed. ²

Schwartz contends the trial court erred in denying his motion for discharge. According to Schwartz he was not brought to trial within a year of his arrest or charge and the delay was not attributable to him. Under Ind.Crim. Rule 4(C) the State has an affirmative duty to bring a criminal defendant to trial within one year. Bates v. State, 520 N.E.2d 129, 131 (Ind.Ct.App.1988), trans. denied. The one year time period commences upon the date of arrest or date of charge, whichever is later. Id. That period is extended by any delay arising from any continuance had on the defendant's motion, by any delay caused by the defendant's act, and by congestion of the court's calendar. Id.

In the case before us the record shows that Schwartz was charged on July 27, 1996. Barring any delays attributable to Schwartz the State was obligated to bring him to trial by July 27, 1997. On August 13, 1996, Schwartz filed a motion to suppress evidence. He withdrew the motion twenty-seven days later on September 9, 1996. This time was attributable to Schwartz. See Solomon v. State, 588 N.E.2d 1271, 1272 (Ind.Ct.App.1992) ("A delay attributable to the defendant runs from the time the motion is filed until the judge rules on the motion."). Thus the State now had to bring Schwartz to trial by August 25, 1997. On September 3, 1997, nine days after the one year period had expired, the trial court set a trial date.

There is no question that once a trial court sets a trial date outside the one year period, the defendant must alert the court and file a timely objection. Wheeler v. State, 662 N.E.2d 192, 194 (Ind.Ct.App.1996). Failure to do so will result in waiver of the defendant's right to discharge. Id. However "a defendant has no duty to object to the setting of a belated trial when the setting of the date occurs after the time expires such that the court cannot reset the trial date within the time allotted by Crim. R. 4(C). All the defendant needs to do then is move for discharge." Pearson v. State, 619 N.E.2d 590, 592 (Ind.Ct.App.1993) (citation omitted). In this case Schwartz so moved but the trial court denied the motion...