Simmons v. State
| Decision Date | 14 May 1974 |
| Docket Number | No. 473S77,473S77 |
| Court | Indiana Supreme Court |
| Parties | Phillip Lee SIMMONS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
Harriette Bailey Conn, Public Defender of Ind., David P. Freund, Deputy Public Defender, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Larry C. Gossett, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal from the denial of a petition for permission to file a belated motion to correct errors following a denial of appellant's petition filed pursuant to post-conviction remedy Rule 1.
It is the position of the State that the trial court was correct in refusing to permit a belated motion to correct errors for the reason that
'The ends of justice do not require the allowing of a belated motion to correct errors, where the defendant and his counsel the Public Defender had failed to timely file a motion to correct errors on the adverse ruling by the Court on the Petition for Post Conviction Relief under P.C. Rule 1.'
If we would accept the State's factual view of this case, we would concede their conclusion to be correct, for if, in fact, a party has intentionally refused or failed to file a timely motion to correct errors, they, of course, cannot at a later time obtain relief by the filing of a request for permission to file a belated motion to correct errors. However, in the case at bar the record reveals that in 1963 the appellant was charged by indictment with the the crime of first degree murder. After first having entered a plea of not guilty, the appellant subsequently appeared in open court and requested permission to withdraw his plea of not guilt and entered a plea of guilty to the offense of second degree murder, which plea was accepted and appellant sentenced accordingly.
On July 6, 1971, the appellant filed his petition for post-conviction relief pro se. After receiving the same, the trial court entered an order appointing the State Public Defender as counsel to represent the appellant. On November 16, 1971, the court denied appellant's petition for post-conviction relief and entered its written findings of fact and conclusions of law. The record in this case, including the special findings of fact and conclusions of law by the trial court, failed to reveal that the Public Defender ever appeared in this case in behalf of the appellant prior to the filing of the petition for permission to file a belated motion to correct errors. In the petition for permission to file a belated motion to correct errors, which petition was made by the Public Defender in behalf of the...
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Mosley v. State
...1 (1977) (agreeing with Dixon in the context of a direct appeal). This Court endorsed the Dixon holding in both Simmons v. State, 262 Ind. 30, 32, 310 N.E.2d 872, 873 (1974) (citing Dixon for the proposition that "[t]he determination as to whether or not [a post-conviction] appeal should be......
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Kissinger v. State
...a P.C. 1 hearing by means of a P.C. 2 Belated Motion to Correct Errors was recently established by our Supreme Court in Simmons v. State (1974), Ind., 310 N.E.2d 872. But see Hendrixson v. State (1974), Ind.App., 310 N.E.2d 569 (pending upon ...
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Brown v. State
...Ind.App., 517 N.E.2d 794. Earlier, in the words of Judge Garrard, we specifically stated: The fair construction of Simmons [v. State (1974), 262 Ind. 30, 310 N.E.2d 872,] is that a belated motion to correct errors will be permitted to be addressed to the denial of PCR 1 relief where, in fac......
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McKinley v. State
...a Motion to Correct Errors, but the trial court once again allowed a motion to be filed belatedly under P.C. Rule 2. See Simmons v. State (1974), Ind., 310 N.E.2d 872. From the overruling of his belated Motion to Correct Errors, McKinley perfected this It is our opinion that since the issue......