State v. Grow, 769S155

• Decision Date: 04 November 1970
• Docket Number: No. 769S155,769S155
• Citation: 23 Ind.Dec. 348,263 N.E.2d 277,255 Ind. 183
• Parties: STATE of Indiana, Appellant, v. Claude GROW, Appellee.
• Court: Indiana Supreme Court

Page 277

263 N.E.2d 277

255 Ind. 183

STATE of Indiana, Appellant, v. Claude GROW, Appellee.

No. 769S155.

Supreme Court of Indiana.

Nov. 4, 1970.

Theodore L. Sendak, Atty. Gen., William F. Thompson, Robert F. Hassett, Deputy Attys. Gen., for appellant.

Robinson & Sammons, Morocco, Bowen, Myers, Northam & Soards, Indianapolis, for appellee.

PER CURIAM.

This is an appeal taken by the Attorney General of the State of Indiana on behalf of the State from a judgment dismissing a criminal action instituted by the State of Indiana by affidavit in two counts charging the appellee with assault and battery with intent to gratify sexual desires, Count One, and assault and battery alone in Count Two.

The only issue in this appeal relates to the appellant's contention that the appellee was not entitled to be discharged under Rule 1--4D for delay in bringing the defendant to trial. Rule 1--4D(3) provides that no person shall be held by recognizance without trial for a period of more than one year from the date upon which the recognizance was taken except as provided in paragraph (1) of the same rule. Paragraph (1) of Rule 1--4D reads as follows:

'Defendant in Jail--No defendant shall be detained in jail on a charge, without a trial, for a continuous period embracing more than six (6) months from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge (which ever 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 circumstances, the prosecuting attorney shall make such statement in a motion for continuance not later than ten (10) days prior to the date set for trial, or if such motion is filed less than ten (10) days prior to trial, the prosecuting attorney shall show additionally that the delay in filing the motion was not the fault of the prosecutor.'

Essentially, the argument is made that the granting of the motion for a change of venue on the request of the defendant was not a delay 'caused by his act.' The facts are essentially as follows:

Appellee posted his recognizance on January 5, 1968, and was arraigned and pleaded not guilty on February 28, 1968. On March 8, 1968 he moved for a change of venue from the judge. Although two panels were named by the presiding judge, in each case the nominee failed to qualify. As a result, the Supreme Court designated a special judge who qualified on September 7, 1968. The cause was set for trial on the prosecutor's motion on November 11, 1968 and again on the prosecutor's motion on January 23, 1969. On January 31, 1969, appellee filed his verified motion for a discharge for delay in trial, alleging that no continuance was had on his own motion and that no trial delay was caused by his act. To that motion the prosecuting attorney filed an affidavit stating that defendant's attorney would not consent or agree to try the case on November 11th, since it was a holiday.

The evidence is undisputed that the defendant filed no formal motion for a continuance. Our only consideration in this case must be given to a proper interpretation of the wording of the rule involved when it states the defendant shall not be entitled to count the time to his own credit for the one-year period involved when 'the delay was caused by his act.' There is nothing in this phraseology which qualifies it with respect to whether or not the act causing the delay was justifiable or meritorious. This is demonstrated in the case of State ex rel. Demers v. Miami Circuit Court (1968), 249 Ind. 616, 233 N.E.2d 777, in which case the appellant was indicted for second degree murder and sought discharge, claiming the time the case was delayed by a plea of temporary insanity and the procedure involved in connection therewith should not be charged against her. This Court held to the contrary, that the delay was caused by her act.

There are, however, cases directly on point by this Court that fix the rule in this jurisdiction. In Colglazier v. State (1953), 231 Ind. 571, 575, 110 N.E.2d 2, 4, this Court had occasion to say:

'Appellant caused a delay in his trial * * * by his act of filing a motion for change of venue from the county and for a change of judge. Such motions necessarily delay the trial of a case.' (Underscoring added).

In Wedmore v. State (1957), 237 Ind. 212, 216, 143 N.E.2d 649, 651, this Court further said:

'Appellant, by his request for a change of judge, set in motion the chain of events which caused the delay in his trial. Hence he is not entitled to a discharge under § 9--1403, supra.'

More recently this Court stated in Norris v. State (1968), Ind., 240 N.E.2d 45, that where appellant had inaugurated the change of venue proceedings voluntarily, he may not be heard to say that this delay forces his discharge.

Where a change of venue from the county has been granted, we have held the time begins to run anew when the court to which the venue is changed receives the transcript and original papers and assumes jurisdiction. State v. Mabrey (1927), 199 Ind. 276, 157 N.E. 97. It follows that the time begins to run anew where a change of venue is taken from a judge when the new judge qualifies and assumes jurisdiction. Norris v. State, supra.

In this case one year had not elapsed when the motion for discharge was granted on January 31, 1969.

The judgment of dismissal by the trial court is reversed and the cause is remanded with directions to reinstate the case for trial.

HUNTER, C.J., concurs.

JACKSON, J., dissents with opinion.

GIVAN and DeBRULER, JJ., not participating.

JACKSON, Judge (dissenting).

I am unable to agree with the majority opinion herein and dissent thereto.

This appeal principally concerns appellant's contention that the appellee was not entitled to be discharged under Rule 1--4D for delay in bringing the defendant to trial.

The Majority opinion factually states '(t)he evidence is undisputed that the defendant filed no formal motion for a continuance.' The record in the case at bar presents the following chronology of events:

1. Affidavit in two counts filed against appellee January 4, 1965;

2. Appellee arrested January 5, 1968, and, on said date, he posted bond;

3. On February 28, 1968, defendant, with counsel, appeared in open court, waived arraignment and entered a plea of 'not guilty';

4. Within ten days after arraignment, on March 8, 1968, defendant filed a motion for change of venue from the Judge of the Jasper Circuit Court, on the same day the Judge of that court named a panel;

5. On March 11, 1968, appellee struck a name from the panel;

6. March 15, 1968, the prosecuting attorney struck;

7. July 10, 1968, the prosecuting attorney advised the court that the remaining nominee failed to qualify and requested the court to name a new panel, which the court that day did;

8. July 12, 1968, both parties struck, and again the remaining nominee failed to qualify;

9. August 9, 1968, the Presiding Judge requested the Supreme Court to appoint a Special Judge and certified that the remaining nominees of the two panels had failed to qualify;

10. August 19, 1968, the Supreme Court appointed Frank Dice as Special Judge;

11. September 7, 1968, Frank Dice qualified as Special Judge;

12. October 17, 1968, on motion of the prosecuting attorney, the cause was set for trial on November 11, 1968;

13. Later, on motion of the prosecutor, the cause was set for trial May 19, 1969;

14. January 31, 1969, appellee filed a verified motion for discharge for delay in trial.

The defendant's verified motion for discharge, omitting formal parts, reads as follows:

'Comes now the defendant, Claude Grow, in person and by his counsel, Edwin L. Robinson, and respectfully moves the court to dismiss the above criminal charge pursuant to Paragraph 3 of Rule 1--4D of the Indiana Supreme Court. Defendant respectifully represents to the court that he has been held by recognizance to answer said charge for more than one year last past without trial, and that there was no continuance had on his motion or trial delay caused by his act.

WHEREFORE, defendant prays that said cause of action be dismissed and that defendant be discharged.

MEMORANDUM

1. Paragraph 3 of Rule 1--4D of the Indiana Supreme Court provides as follows: 'Defendant on Recognizance.--No Person shall be held by recognizance to answer an indictment or affidavit, without trial, for a period embracing more than one (1) year continuously from the date on which a recognizance was first taken therein; but he shall be discharged except as provided by paragraph one (1) of this rule.' (Italics added)

2. An examination of this rule clearly shows that it is mandatory and not advisory and that the defendant shall be discharged unless he comes within the exceptions referred to in paragraph 1 of the rule.

3. Paragraph 1 of Rule 1--4D is as follows: 'Discharge for Delay in Criminal Trials.--1. Defendant in Jail.--No defendants shall be detained on a charge, without a trial, for a continous period embracing more than six (6) months from the date of (sic) 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 circumstances, the prosecuting attorney shall make such statement in a motion for continuance not later than ten (10) days prior to the date set for trial, or if such motion is filed less than ten (10) days prior to trial, the prosecuting attorney shall show additionally that the delay in filing the motion was not the fault of the prosecutor.' (Italics added)

4. An examination of the...