State ex rel. Wickliffe v. Judge of Criminal Court of Marion County

Decision Date02 June 1975
Docket NumberNo. 475S85,475S85
Citation328 N.E.2d 420,263 Ind. 219
PartiesSTATE of Indiana on the relation of Lonnie R. WICKLIFFE, Relator, v. The JUDGE OF the CRIMINAL COURT OF MARION COUNTY, State of Indiana, Division 4, the Honorable John B. Wilson, Respondents.
CourtIndiana Supreme Court
Kenneth C. Kern & Associates, Kenneth C. Kern, Hart E. Meyer, Indianapolis, for relator

PRENTICE, Justice.

This is an original action for a writ of mandate against The Criminal Court of Marion County, Division 4, and the Judge thereof to compel the discharge of the Relator under Criminal Rule 4(B)(1). 1

The Relator was charged with murder in the first degree by affidavit filed in the Municipal Court of Marion County on October 25, 1974. Simultaneously, a probable cause affidavit was filed in said court relating to the Relator and in the same offense. An arrest warrant for the Relator was issued thereon, and he was arrested and incarcerated in the County Jail. On November 8, 1974, a preliminary hearing was held in said court with the Relator present in person and by counsel, and probable cause was found. Whereupon, Relator was ordered bound over to the Criminal Court of Marion County and remanded to jail.

On November 13, 1974, Relator's counsel appeared in said Municipal Court and filed a written motion for early trial, purportedly pursuant to Criminal Rule 4(B)(1) and mailed a copy thereof to the office of the prosecutor. On December 27, 1974, there was filed in the Respondent Court an indictment against the Relator for first degree murder returned by the Grand Jury of Marion County and relating to the same offense. On the same day, a capias for the arrest of the Relator was issued and served, and the Relator was retained in the County Jail, where he has remained continuously to this time.

On January 13, 1975, Relator appeared in person and by counsel and was arraigned upon the first degree murder indictment, entered a plea of not guilty and orally requested an early trial. The request was noted by Respondent Court, and the cause was scheduled for a pretrial conference on February 5, 1975.

On January 25, 1975, which was the seventy-first day following the filing of the purported motion for an early trial in the Municipal Court, counsel for the Relator filed a motion for discharge in the Respondent Court, premised upon the lapse, without having been brought to trial, of more than seventy days following the filing of the motion for an early trial. Said motion was denied, and it is that denial that is here under review.

The Respondent Court's denial of the motion for discharge is sustainable upon two grounds.

(1) The criminal jurisdiction of the Municipal Court of Marion County is limited to cases in which the maximum penalty is a fine of less than $1,000.00 and imprisonment of not more than one year, to the holding of persons to bail before the proper court (or to commit them in default of such bail) and to the hearing of preliminary charges for the purpose of determining probable cause in felony charges filed by information. IC 33--6--1--2(c) and (d) Burns Ind.Stat.Ann. § 4--5802(c) and (d); IC 18--1--14--5, Burns Ind.Stat.Ann. § 48--552; IC 35--4--1--1, Burns Ind.Stat.Ann. § 9--704a. It has no jurisdiction to try the Relator upon the charge of first degree murder. Consequently, it was without power to act in response to the purported motion. The motion was a nullity and should have been stricken sua sponte. The failure of the Municipal Court to do so, however, is of no consequence.

(2) Assuming that the filing of the early trial motion in Municipal Court commenced the running of the seventy day period, a position that is untenable for the reasons aforesaid, the Relator, nevertheless,...

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20 cases
  • Wickliffe v. Farley
    • United States
    • U.S. District Court — Northern District of Indiana
    • 10 novembre 1992
    ... ... S92-324(S) ... United States District Court, N.D. Indiana, South Bend Division ...         ALLEN SHARP, Chief Judge ...          I. INTRODUCTION ... as Mutee El-Amin, an inmate at the Indiana State Prison, filed a petition seeking relief under 28 ... Marion Superior Court, Marion County, Indiana, and was ... Court of Indiana as reflected in State ex rel. Wickliffe v. Judge of Criminal Court, 263 Ind ... ...
  • Minneman v. State
    • United States
    • Indiana Supreme Court
    • 12 novembre 1982
    ... ... No. 481S103 ... Supreme Court of Indiana ... Nov. 12, 1982 ... Page 674 ... it was reversible error for the habitual criminal allegation to allege that the appellant committed ... circuit or superior court of the proper county where such keeper resides, that such attestation ... Defendant's motion for change of Judge ... September 25, 1979 to October 17, 1979 ... Cf. State ex rel. Wickliffe v. Marion Criminal Court, (1975) 262 ... ...
  • Saffold v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 8 décembre 1987
    ... ... Kevin SAFFOLD ... 4 Div. 866 ... Court of Criminal Appeals of Alabama ... Dec. 8, 1987 ...         PATTERSON, Judge ...         Appellant, Kevin Saffold, ... , to the District Court Clerk of Houston County, Alabama, by certified mail, appellant's Request ...         Id. (quoting State ex rel. Wickliffe v. Judge of Criminal Court, 263 Ind ... ...
  • Lewis v. State
    • United States
    • Indiana Supreme Court
    • 10 mars 1976
    ... ... No. 475S93 ... Supreme Court of Indiana ... March 10, 1976 ... release (discharge) the defendant under Criminal Rule 4(A) ... (2) Permitting the eight year old ... indicted for the same crime by the Lake County Grand Jury, and the State moved to nolle prosse ... must bring to the attention of the trial judge the fact that a date for trial has been set ... Wickliffe v. State, (1975) Ind., 328 N.E.2d 420; Utterback ... ...
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