Smith v. State, No. 2--674A134

Docket NºNo. 2--674A134
Citation330 N.E.2d 384, 165 Ind.App. 37
Case DateJuly 10, 1975
CourtCourt of Appeals of Indiana

Page 384

330 N.E.2d 384
165 Ind.App. 37
Robert Ree SMITH, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee.
No. 2--674A134.
Court of Appeals of Indiana, Third District.
July 10, 1975.
Rehearing Denied Aug. 21, 1975.

[165 Ind.App. 38]

Page 385

Jerry W. Newman, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Judge.

Defendant-appellant Robert Ree Smith (Smith) was convicted by a jury of the crime of assault and battery with intent to kill. 1 He appeals following the overruling of his motion to correct errors by the trial court.

Appellant Smith first asserts on appeal that the trial court erred in refusing to grant a motion for discharge made by him under the provisions of Ind. Rules of Procedure, Criminal Rule 4(A). Such rule provides that a criminal defendant may not be incarcerated on a [165 Ind.App. 39] charge, without a trial, for a period exceeding six months where there has been no delay on his part. State ex rel. Dull v. Circuit Court of Delware Cty. (1973), Ind., 301 N.E.2d 519.

In the case at bar, it is undisputed that appellant was incarcerated longer than this period. However, appellant appeared in the trial court and waived arraignment on a date within the 6-month period, and at such

Page 386

time his trial was set at a date beyond such 6-month period. Because Smith voiced no objection to the setting of his trial beyond such period, the denial of his motion for discharge by the trial court must be affirmed. Bryant v. State (1973), Ind., 301 N.E.2d 179.

The next issue which must be considered herein is whether the trial court erred in refusing a continuance requested by appellant moments before his jury trial was to commence. The reason given for such request was that appellant wished to employ an additional attorney to assist in the presentation of his defense at trial. Where, as in the case at bar, a motion for continuance is not based upon certain statutory grounds, 2 the ruling on such motion is within the sound discretion of the trial court. King v. State (1973), Ind., 296 N.E.2d 113, 115; Johnson v. State (1970), 254 Ind. 465, 467, 260 N.E.2d 782; Carlin v. State (1970), 254 Ind. 332, 335, 259 N.E.2d 870; Reed v. State (1973), Ind.App., 300 N.E.2d 108 (transfer denied); Trinkle v. State (1972), Ind.App., 288 N.E.2d 165 (transfer denied).

Such ruling must be upheld in the absence of a demonstration of a clear abuse of discretion. Generally, requests for continuance are not favored and will only be granted in furtherance of justice upon a showing of good cause. Johnson v. State, supra; Stock v. State (1974), Ind.App., 319 N.E.2d 871, 873; Dockery v. State (1974), Ind.App., 317 N.E.2d [165 Ind.App. 40] 453, 458; Hopper v. State (1974), Ind.App., 314 N.E.2d 98, 103.

In cases such as these, account must be taken not only of the wishes of the defendant, but also of the public interest in the prompt disposition of these matters. See: ABA Standards, Speedy Trial, § 1.3, at 5 (Approved Draft, 1968).

Appellant contends that the trial court's refusal to grant his request for a continuance compelled him to submit to trial without a counsel of his choice.

However, upon the facts presented, the refusal of a continuance and concomitant rejection of a request for additional counsel was within the sound discretion of the trial court and did not amount to an abuse thereof. In United States v. Cozzi (7th Cir., 1965), 354 F.2d 637, at 639, the court stated that,

'An accused's Sixth Amendment right to select his own counsel does not permit of arbitrary action which obstructs orderly procedure in the courts. United States v. Bentvena, 2 Cir., 319 F.2d 916, 936. It is a right to be exercised at an appropriate stage within the procedural framework of the system of criminal jurisprudence of which it is a part. Absent justifiable basis therefor there is no constitutional right to make a new choice of counsel, with attendant necessity for a continuance because thereof, at the time the trial is scheduled to commence. * * *.'

The appellant in making his request for continuance did not express dissatisfaction with the counsel who had represented him for many months prior to trial. The additional counsel purportedly retained by appellant entered no appearance in the cause and there is no indication in the record that the trial court was otherwise contacted by him prior to trial. An examination of the entire record discloses that appellant was ably represented by his counsel during trial. Under these circumstances, the expeditious administration of justice outweighed appellant's desire for the last minute addition of another attorney. Cf. United States v. Hampton (7th Cir., 1972), 457 F.2d 299.

[165 Ind.App. 41]

Page 387

Appellant also contends...

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19 practice notes
  • Sweeney v. State, No. 10S00-9603-CR-231
    • United States
    • Indiana Supreme Court of Indiana
    • December 18, 1998
    ...v. State, 560 N.E.2d 1246, 1249 (Ind.1990). 41 Id. The facts of this case are substantially similar to the facts in Smith v. State, 165 Ind.App. 37, 330 N.E.2d 384, 388 (Ind.Ct.App.1975). After being released on bail from state charges, defendant Smith was convicted for another crime and in......
  • Snyder v. State, No. 3-477A97
    • United States
    • Indiana Court of Appeals of Indiana
    • August 30, 1979
    ...Johnson v. State (1970), 254 Ind. 465, 260 N.E.2d 782; Sacks v. State (1977), Ind.App., 360 N.E.2d 21; Smith v. State (1975), Ind.App., 330 N.E.2d 384. In order to show an abuse of discretion the record must reveal that the appellant was prejudiced by the failure to grant the continuance. K......
  • Woodson v. State, No. 2-478
    • United States
    • Indiana Court of Appeals of Indiana
    • December 29, 1978
    ...sentences concurrently for various crimes. Bewley v. State (1966),247 Ind. 652, 220 N.E.2d 612. Thus, in Smith v. State (1975), Ind.App.,330 N.E.2d 384 this Court [178 Ind.App. 702] rejected a contention by the defendant that his imprisonment by Federal authorities after the imposition of h......
  • Haggenjos v. State, No. 182S22
    • United States
    • Indiana Supreme Court of Indiana
    • November 4, 1982
    ...(1965) 247 Ind. 113, 116-17, 210 N.E.2d 852, 855; Washington v. State, (1979) Ind.App., 379 N.E.2d 1032, 1035; Smith v. State, (1975) 165 Ind.App. 37, 42, 330 N.E.2d 384, 387 (trans. Also over objection the victim testified that she left the hospital on the "8th day." In Arnett v. State, (1......
  • Request a trial to view additional results
19 cases
  • Sweeney v. State, No. 10S00-9603-CR-231
    • United States
    • Indiana Supreme Court of Indiana
    • December 18, 1998
    ...v. State, 560 N.E.2d 1246, 1249 (Ind.1990). 41 Id. The facts of this case are substantially similar to the facts in Smith v. State, 165 Ind.App. 37, 330 N.E.2d 384, 388 (Ind.Ct.App.1975). After being released on bail from state charges, defendant Smith was convicted for another crime and in......
  • Snyder v. State, No. 3-477A97
    • United States
    • Indiana Court of Appeals of Indiana
    • August 30, 1979
    ...Johnson v. State (1970), 254 Ind. 465, 260 N.E.2d 782; Sacks v. State (1977), Ind.App., 360 N.E.2d 21; Smith v. State (1975), Ind.App., 330 N.E.2d 384. In order to show an abuse of discretion the record must reveal that the appellant was prejudiced by the failure to grant the continuance. K......
  • Woodson v. State, No. 2-478
    • United States
    • Indiana Court of Appeals of Indiana
    • December 29, 1978
    ...sentences concurrently for various crimes. Bewley v. State (1966),247 Ind. 652, 220 N.E.2d 612. Thus, in Smith v. State (1975), Ind.App.,330 N.E.2d 384 this Court [178 Ind.App. 702] rejected a contention by the defendant that his imprisonment by Federal authorities after the imposition of h......
  • Haggenjos v. State, No. 182S22
    • United States
    • Indiana Supreme Court of Indiana
    • November 4, 1982
    ...(1965) 247 Ind. 113, 116-17, 210 N.E.2d 852, 855; Washington v. State, (1979) Ind.App., 379 N.E.2d 1032, 1035; Smith v. State, (1975) 165 Ind.App. 37, 42, 330 N.E.2d 384, 387 (trans. Also over objection the victim testified that she left the hospital on the "8th day." In Arnett v. State, (1......
  • Request a trial to view additional results

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