State ex rel. Macon v. Orange Circuit Court, 0-660

• Decision Date: 07 May 1964
• Docket Number: No. 0-660,0-660
• Citation: 245 Ind. 269,198 N.E.2d 229
• Parties: The STATE of Indiana ex rel. Peter MACON, Petitioner, v. The ORANGE CIRCUIT COURT and the Honorable Charles R. Ratts, as Judge thereof, Respondents.
• Court: Indiana Supreme Court

Page 229

198 N.E.2d 229

245 Ind. 269

The STATE of Indiana ex rel. Peter MACON, Petitioner, v. The ORANGE CIRCUIT COURT and the Honorable Charles R. Ratts as Judge thereof, Respondents.

No. 0-660.

Supreme Court of Indiana.

May 7, 1964.

Peter Macon, pro se.

Edwin K. Steers, Atty. Gen., for respondents.

ON REHEARING

PER CURIAM.

On rehearing our attention has been called to our order to the trial court to appoint counsel for the petitioner, other than the Public Defender of the State of Indiana. We point out our reason for doing this is that this official has previously taken a position inconsistent with that of the petitioner in his request to file a belated motion for a new trial.

In refusing at this time to order a transcript of the trial record for a belated motion for a new trial, we note that the rules of procedure in Indiana are far more liberal than that prescribed by the United States Supreme Court for federal trial courts. In Indiana a defendant has a period of 30 days after conviction within which his counsel may determine in good faith whether or not to file such a motion and prepare the same if he finds merit exists therefor. However, under rules approved by the United States Supreme Court, a defendant in a criminal case has only 5 days, and any extension to file a belated motion must be requested within the five-day period. (Rule 33, Rules of Criminal Procedure, United States Courts.)

It would seem that no transcript is considered necessary for the filing of a motion for a new trial in a criminal case in a federal court. The period being so short for that purpose, the notes of trial counsel during trial must be relied upon for such purpose.

As judges, who as lawyers have engaged in trial work, we know that competent trial counsel can, should and will make adequate notes and memoranda during trial for use in preparing a motion for a new trial, thus making a transcript unnecessary, as we have previously said. State ex rel. Macon v. Orange Circuit Ct. (1962), 243 Ind. 429, 185 N.E.2d 619.

We have held it is the duty of trial counsel (for rich or poor) to file such a motion if merit exists. He should not file such a motion in bad faith if he believes no meritorious grounds exist therefor.

The original trial counsel was best able to judge during the 30 day period if merit existed for filing a motion for a new trial from his notes, memoranda and knowledge during trial. He has a duty in Indiana as competent counsel to so act and make such decision as part of trial counsel's obligation. Willoughby v. State (1960), 242 Ind. 183, 167 N.E.2d 881, Reh. Den. 177 N.E.2d 465; Cert. Den. 374 U.S. 832, 83 S.Ct. 1876, 10 L.Ed.2d 1055; State ex rel. Macon v. Orange Circuit Ct. (1962), 243 Ind. 429, 185 N.E.2d 619.

A pauper and a rich man alike are bound in this state by the action or nonaction of competent trial counsel. So far as we can find, that principle is true in federal courts if there is a failure to file a motion for a new trial within five (5) days and no request is made within such time to file a belated motion as to matters occurring during the trial.

Lawyers and judges of experience know that courts can operate under no other principle. Nothing would ever be finally settled or adjudicated without following such principles.

In reviewing this case as directed 'in the light of Lane v. Brown (1963), 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892', we must call attention to the fact that since that case was decided, and in the light of the suggestion in that...