State ex rel. Wernke v. Superior Court of Hendricks County

• Decision Date: 15 June 1976
• Docket Number: No. 376S91,376S91
• Citation: 264 Ind. 646,348 N.E.2d 644
• Parties: STATE of Indiana ex rel. Ray J. WERNKE, Relator, v. SUPERIOR COURT OF HENDRICKS COUNTY and Vincin Helton, Judge Superior Court, Hendricks County, Respondent.
• Court: Indiana Supreme Court

Page 644

348 N.E.2d 644

264 Ind. 646

STATE of Indiana ex rel. Ray J. WERNKE, Relator, v. SUPERIOR COURT OF HENDRICKS COUNTY and Vincin Helton, Judge Superior Court, Hendricks County, Respondent.

No. 376S91.

Supreme Court of Indiana.

June 15, 1976.

John T. Manning, Indianapolis, for relator

Seth B. Lewis, Danville, for respondent.

ORIGINAL ACTION

ARTERBURN, Justice.

This is an original action for a writ of mandate and prohibition against the Superior Court of Hendricks County and its judge to compel the discharge of the petitioner under Criminal Rule 4(C) and prevent further action in the cause against him. The verified petition for the writ was filed on March 19, 1976. A hearing on the petition was held on March 29, 1976.

The petitioner, Ray J. Wernke, was charged on December 6, 1974, with the unlawful delivery of a controlled substance, marijuana. Arrested on December 6, the petitioner was arraigned in Hendricks County Superior Court on April 11, 1975. Trial was set for October 20, 1975. On October 17, 1975, the State moved to dismiss the cause on the grounds that the information erroneously charged delivery of marijuana when the delivery was actually of hashish. This motion was granted.

The petitioner was charged once more on October 30, 1975, by an information which specified the delivery of hashish. Following arrest of the petitioner and the posting of bond, arraignment was set for January 22, 1976. On January 20, 1976, the petitioner filed with the trial court a motion for discharge on the grounds that he had been held to answer on his criminal charge for more than a year and was entitled to discharge under Criminal Rule 4(C). This motion was denied on March 4, 1976. The petitioner was arraigned on March 10, at which time trial was set for March 22. These proceedings have been continued pending disposition of the petition before this court.

Criminal Rule 4(C) provides in part that (n)o 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 . . ..' While the two informations filed against the petitioner specified the delivery of different substances, the statutory definition of 'marijuana' includes 'hashish.' Ind.Code § 35--24.1--1--1 (Burns 1975). In calculating the year period under Criminal Rule 4(C), we will thus look to the date of the filing of the first information against the petitioner and his arrest, December 6, 1974.

Having determined this starting date in our calculations, there is no question that the year period had indeed run when the petitioner's motion for discharge was filed. We do not believe, however, that the petitioner was entitled to discharge. Examination of the facts reveals that the petitioner waived his right to discharge under Criminal Rule 4(C) and cannot now complain.

The obligation of a defendant to object at the earliest opportunity when his trial date is set beyond the time limits prescribed in Criminal Rule 4 is well-established. In Bryant v. State, (1973) 261 Ind. 172, 301 N.E.2d 179, this court affirmed the denial of that defendant's motion for discharge. In addressing the six month rule prescribed in Criminal Rule 4(A), Justice Prentice wrote:

'Although the record does not reflect the presence of the defendant or her counsel in court at the time of the setting (June 11, 1971), counsel acknowledges that he received notice of the trial date by mail in June. He voiced no objection until after the rule time had expired. He is charged with knowledge, from the date he is notified that the trial date did not fall within the period prescribed by the rule. His failure to object, at the earliest opportunity thereafter, must be regarded as acquiescence therein and a waiver of the right to discharge for such cause.'

261 Ind. at 174, 301 N.E.2d at 180.

In Utterback v. State, (1974) Ind., 310 N.E.2d 552, we considered the applicability of this requirement to the speedy trial provisions of Criminal Rule 4(B). Justice Prentice again spoke for the court and compared the operation of subsections (A) and (B) of the rule:

'The purpose of the rules is to assure early trials and not to discharge defendants. The material difference between the rules is that under the one the time starts running automatically, while under the other the defendant must trigger it with a motion. In either event, when a ruling is made that is incorrect, and the offended party is aware of it, or reasonably should be presumed to be aware of it, it is his obligation to call it to the court's attention in time to permit a correction. If he fails to do so, he should not be heard to complain. The courts are under legal and moral mandate to protect the constitutional rights of accused persons, but this should not entirely relieve them from acting reasonably in their own behalf. We will vigorously enforce the right to a speedy trial, but we do not intend that accused persons should escape trial by abuse of the means that we have designed for their protection.'

310 N.E.2d at 553--554.

In State ex rel. Wickliffe v. Judge of Criminal Court of Marion County, (1975) Ind., 328 N.E.2d 420, we addressed the issue of whether the Bryant and Utterback cases would apply to a situation in which a trial date had not yet been set. The contention that the defendant in that case could not object to a date that had not yet been set was rejected when it was found that he had acquiesced to the scheduling of a pretrial conference on a date...