State v. Lee
| Decision Date | 17 July 1975 |
| Docket Number | No. 1--874A128,1--874A128 |
| Citation | 331 N.E.2d 50,164 Ind.App. 391 |
| Parties | STATE of Indiana, Appellant (Plaintiff Below), v. Charles W. LEE, Sr., Appellee (Defendant Below). |
| Court | Indiana Appellate Court |
Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Asst. Atty. Gen., Indianapolis, for appellant.
Rice & VanStone, William E. Weikert, Evansville, for appellee.
On Petition for Rehearing
Since our original opinion in this matter, 47 Ind.Dec. 257, 328 N.E.2d 745, Lee has filed (1) a motion to dismiss alleging lack of jurisdiction, and (2) a petition for rehearing alleging lack of jurisdiction and that our holding contravened a ruling precedent of the Supreme Court.
Relying upon IC 1971, 35--1--47--2, Ind.Ann.Stat. § 9--2304 (Burns Supp.1974), Lee maintains that jurisdiction of State's appeal from his acquittal lies solely with the Supreme Court:
'9--2304 IC 35--1--47--2. Appeal by state.--Appeals to the Supreme Court may be taken by the state in the following cases.
First. From a judgment for the defendant, on quashing or setting aside an indictment or information, or sustaining a plea in abatement.
Second. From an order or judgment for the defendant, upon his motion for discharge because of delay of his trial not caused by his act, or upon his plea of former jeopardy, presented and ruled upon prior to trial.
Third. From a judgment of the court arresting judgment.
Fourth: Upon a question reserved by the state.'
(Emphasis added.)
Lee's argument however, overlooks the rules of appellate procedure which govern this court's jurisdiction. Notwithstanding any law, statute, or rule providing for a direct appeal to the Supreme Court, all appeals except those few enumerated in Ind. Rules of Procedure, Appellate Rule 4(A), are to be taken to this court. AP. 4(B). Inasmuch as State's appeal did not fall within one of the limited categories of AP. 4(A), jurisdiction lay in this court. Lee's motion to dismiss therefore is overruled.
Having disposed of the jurisdictional contention, we need only address Lee's argument in his petition for rehearing that our opinion contravened the case of State v. Robbins (1943), 221 Ind. 125, 46 N.E.2d 691, by not limiting our opinion to questions of law for the guidance of inferior courts. We vigorously disagree with such an assertion and suggest that petitioner once again reread our decision. It does not in any manner amend, modify, affect or reverse the judgment rendered by the Vanderburgh Circuit...
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State v. Williams
...as to which appellate court the State should properly bring appeals. State v. New (1981), Ind., 421 N.E.2d 626; State v. Lee (1975), 164 Ind.App. 391, 331 N.E.2d 50. The 1981 amendment was therefore adopted for two (1) to expand the limited instances in which the State may bring appeals, an......
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...Rule 4(A, B) provides that such cases shall be taken either to the Supreme Court or the Indiana Court of Appeals. See also State v. Lee (1975), Ind.App., 331 N.E.2d 50. ...
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...direction of Art. VII, § 4, of the Indiana Constitution. Indiana Rules of Appellate Procedure 4 governs the matter. State v. Lee, (1975) 164 Ind.App. 391, 331 N.E.2d 50. This appeal does not fall within any of the categories in the rule of cases directly appealable to this Court. The judgme......