State ex rel. Henson v. Washington Circuit Court

• Decision Date: 06 November 1987
• Docket Number: No. 88S00-8708-OR-00767,88S00-8708-OR-00767
• Citation: 514 N.E.2d 838
• Parties: STATE of Indiana on the Relation of Joey HENSON, Relator, v. The WASHINGTON CIRCUIT COURT and the Honorable Robert L. Bennett, As Judge Thereof, Respondents.
• Court: Indiana Supreme Court

Page 838

514 N.E.2d 838

STATE of Indiana on the Relation of Joey HENSON, Relator, v. The WASHINGTON CIRCUIT COURT and the Honorable Robert L Bennett, As Judge Thereof, Respondents.

No. 88S00-8708-OR-00767.

Supreme Court of Indiana.

Nov. 6, 1987.

Robert L. Houston III, Everitt, Houston & Thompson, Scottsburg, for relator.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for respondents.

PIVARNIK, Justice.

On August 21, 1987, this Court granted Relator's application for alternative writ of mandamus ordering Respondents to vacate the order denying Relator's Motion to Dismiss, prohibiting the setting of this matter for trial, and mandating the release and discharge of the Relator, filed against Relator under Cause No. 86-CR-127-CV and prohibiting further proceedings on these charges. This opinion is an explanation of that order and further ordering that the alternative writ be made permanent.

The chronology of events pertinent to this issue is as follows:

                June 8, 1986       Defendant arrested
                June 9, 1986       Initial hearing
                                     Defendant charged
                August 1, 1986     Deft.  Motion for a
                                     Change of Venue
                                     granted after
                                     hearing.
                August 19,1986     Cause filed in
                                     Washington County.
                December 15, 1986  State files motion to
                                     set trial date.
                January 5, 1987    Court sets trial for
                                     July 7, 1987,
                                     no objection by
                                     Defendant.
                July 20, 1987      Defendant files
                                     Motion to dismiss
                                     uner Criminal Rule
                                     4(C).
                July 22, 1987      C.R. 4(C) motion heard
                                     and denied;
                                   Court sets trial for
                                     July 28, 1987.
                

Relator claims he is entitled to discharge since the State failed to bring him to trial within the one year period prescribed by Ind.R.Cr.P. 4(C). This rule provides:

"No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the Court calendar; provided, however, that in the last-mentioned circumstance, the Prosecuting Attorney shall file a timely motion for continuance as under subdivision (A) of this rule.... Any Defendant so held shall, on motion, be discharged."

Pursuant to this rule the State was under a duty to bring Relator to trial by June 9, 1987 unless any delay within that year was attributable to the acts of the Relator. It is established by the record and acknowledged by the Relator that there was a delay from August 1, 1986, which was the date of the filing of a motion for change of venue from the county to August 19, 1986, which shows the change of venue from Scott County, Indiana completed to the Washington Circuit Court. This was a nineteen (19) day delay which had the effect of establishing June 28, 1987 as the date the State was obliged to bring the defendant to trial. The record further shows that on January 5, 1987, the cause was set for trial July 7, 1987. The Relator knew of the July 7 date and made no objection even though it was nine (9) days after the one year period was to run. However, on July 2, 1987, the Washington Circuit Court reporter informed Relator's counsel, by telephone, the July 7 trial date had been continued and notice would be sent regarding rescheduling. At approximately the same time, Relator's counsel was informed that the judge of the Washington Circuit Court was leaving for vacation and would return and be present in court on July 21, 1987. On July 20, 1987 Defendant...