Skolnick v. State, 381S75

• Decision Date: 16 March 1981
• Docket Number: No. 381S75,381S75
• Parties: Sherman H. SKOLNICK, Appellant, v. STATE of Indiana, Appellee, and Saul I. Ruman and Richard J. Lesniak, Appellees (Intervenors Below).
• Court: Indiana Supreme Court

Page 1103

417 N.E.2d 1103

275 Ind. 461

Sherman H. SKOLNICK, Appellant, v. STATE of Indiana, Appellee and Saul I. Ruman and Richard J. Lesniak, Appellees (Intervenors Below).

No. 381S75.

Supreme Court of Indiana.

March 16, 1981.

Sherman H. Skolnick, pro se.

Linley E. Pearson, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee State of Indiana.

Saul I. Ruman, Hammond, for appellees Saul I. Ruman and Richard J. Lesniak.

GIVAN, Chief Justice.

The Supreme Court receives this case on a petition to transfer from a decision rendered by the Court of Appeals October 25, 1979, and recorded in 397 N.E.2d 986.

On July 29, 1975, the appellant was convicted of three counts of direct criminal contempt by the Porter Superior Court. The Court of Appeals affirmed two convictions and reversed one. Both appellant and the State, as appellee, petitioned this Court for transfer of the cause pursuant to Appellate Rule 11(B).

The relevant facts for our determination are as follows:

July 29, 1975: Order issued citing Skolnick for three counts of contempt (the subject of this appeal), and setting bond on each count at $5,000 ($15,000 total).

July 30, 1975: Bench warrant issued for Skolnick's arrest.

August 27, 1975: The trial court issued an order finding: (1) That the Porter County Sheriff had informed the court that Skolnick had fled the court's jurisdiction into Illinois in order to avoid arrest. This was supported by Skolnick's attempt to file pleadings which were mailed from Chicago, Illinois, and Skolnick's statement over a "telephone hotline" that he was in Illinois to avoid the jurisdiction of the Porter Superior Court. (2) That the court would not entertain any pleas from Skolnick until he submitted himself to the jurisdiction of the court. (3) That the Porter County clerk was not to act on any pleadings attempted to be filed by Skolnick until further ordered by the Porter Superior Court.

September 26, 1975: Skolnick attempted to file his motion to correct errors, but it was not filed pursuant to the trial court's order.

May 5, 1976: On Skolnick's petition to the Court of Appeals for an order of mandate against the Porter Superior Court, a per curiam memorandum decision was issued giving Skolnick thirty days to submit himself to jurisdiction of the Porter Superior Court, and thereafter, sixty days to perfect his appeal.

July 12, 1976: The trial judge certified to the Court of Appeals that Skolnick had timely submitted himself to the jurisdiction of the Porter Superior Court by posting bond.

July 12, 1976: Skolnick's motion to correct errors was ordered filed.

July 29, 1976: Skolnick's motion to correct errors was overruled.

August 19, 1976: Skolnick's amended praecipe was filed.

Indiana Rules of Trial Procedure 59(C) states that a motion to correct errors shall be filed not later than sixty days after the entry of judgment. Failure to file a timely motion to correct errors precludes appellate review. Lines v. Browning, (1973) 156 Ind.App. 185, 295 N.E.2d 853. An extension of time to file a motion to correct errors cannot be granted. Lines, supra. Indiana Rules of Trial Procedure 6(B) states:

(B) Enlargement. When an act is required or allowed to be done at or within a specified time by these rules, the court may at any time for cause shown:

(2) upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect; but, the court may not extend the time for taking any action ... to correct errors under 59(C) ...

However, the general rule in this state is that the voluntary and unlawful absence of the defendant from the trial court's jurisdiction waives his right to a timely appeal. Irvin v. State, (1956) 236 Ind. 384, 139 N.E.2d 898; State ex rel. Ruetz v. LaGrange Circuit Court, (1972) 258 Ind. 354, 281 N.E.2d 106. In Irvin, we stated:

"If a prisoner escapes he is not entitled during the period he is a fugitive to any standing in court or to file any plea or ask any consideration from such court."

236 Ind. at 391, 139 N.E.2d at 901.

Based upon the information from the Porter County Sheriff that Skolnick had fled the Porter Superior Court's jurisdiction, the trial court ordered the clerk to refuse pleadings from Skolnick. The trial court was correct in making such an order. Skolnick's attempt to file his motion to correct errors on September 26, 1975, while absent from the trial court's jurisdiction, was correctly denied. By his continuing absence during the time period designated by Indiana Rule Tr.P. 59(C), Skolnick waived his right to file his motion to correct errors and consequently perfect his appeal for appellate review. Therefore, the mandate order issued by the Court of Appeals on May 5, 1976, granting the appellant 30 days to submit himself to the Porter Superior Court's jurisdiction and 60 days thereafter to perfect his appeal is overruled.

We accept transfer of this cause, vacate the opinion of the Court of Appeals, and dismiss this appeal for lack of jurisdiction.

GIVAN, C. J., and HUNTER and PRENTICE, JJ., concur.

DeBRULER, J., dissents with opinion.

PIVARNIK, J., not participating.

DeBRULER, Justice, dissenting.

The majority opinion states that the test to be applied in determining whether...