State v. McMillan
| Decision Date | 23 September 1980 |
| Docket Number | Nos. 680S167,680S164 and 680S165,s. 680S167 |
| Parties | STATE of Indiana, Appellant (Plaintiff below), v. Hubert McMILLAN, Appellee (Defendant below). STATE of Indiana, Appellant (Plaintiff below), v. Harry E. FERGUSON, Appellee (Defendant below). STATE of Indiana, Appellant (Plaintiff below), v. Albert Lee WOODS, Appellee (Defendant below). |
| Court | Indiana Supreme Court |
Theodore L. Sendak, Atty. Gen., Michael Gene Worden, Asst. Atty. Gen., Indianapolis, for appellant.
Kenneth C. Kern, Kenneth C. Kern & Associates, Indianapolis, for appellee McMillan.
Perry H. Harrold, Indianapolis, for appellee Ferguson.
Sandy L. Bryant, Indianapolis, for appellee Woods.
These three appeals arise from separate dispositions in the trial courts below. Because they involve substantially the same questions, they have been consolidated for purposes of briefing and consideration by this Court. Defendant Hubert McMillan was convicted by a jury of burglary, a class C felony, Ind.Code § 35-43-2-1 (Burns 1979 Repl.). Defendant Albert Lee Woods was also convicted by a jury of burglary, a class C felony. Defendant Harry E. Ferguson was convicted by a jury of robbery, a class C felony, Ind.Code § 35-42-5-1 (Burns 1979 Repl.).
In each instance, the state attempted to have the defendants sentenced as habitual criminals pursuant to Ind.Code § 35-50-2-8 (Burns 1979 Repl.) (amended 1980). However, after the evidence had been presented in the second stage of the bifurcated proceeding, the jury advised the trial court that it could not reach a verdict. Each trial court declared a mistrial and discharged the jury. The state's motions for a new trial setting were denied, and the habitual offender allegations were dismissed. McMillan was sentenced to five years' imprisonment on his burglary conviction. The state appealed the trial court's ruling on its motion for a new trial setting and the dismissal of the habitual offender charge directly to the Court of Appeals. In the cases of Ferguson and Woods, neither defendant was sentenced for the underlying crimes. The trial courts certified their orders of dismissal and denial of the motion for a new trial setting pursuant to Ind.R.Ap.P. 4(B)(5) and suspended enforcement of the orders pending appeal. The state then initiated interlocutory appeals to the Court of Appeals which stayed the sentencing of defendants until their cases could be decided. By virtue of Ind.R.Ap.P. 4(A) (10), all three appeals were transferred to this Court where they were consolidated. In each case, two issues are submitted for our review:
1. Whether the state is authorized to appeal the trial courts' rulings; and
2. Whether the state is entitled to a new jury for retrial on the habitual offender charge alone when a mistrial has been declared in that phase of the bifurcated proceeding for the reason that the original jury was unable to agree on a verdict.
Each defendant-appellee has filed a motion to dismiss the state's appeal. Defendant McMillan supports his motion on three grounds. First, he contends that none of the statutory provisions governing the state's right to appeal criminal cases, Ind.Code § 35-1-47-2 (Burns 1979 Repl.), is applicable in this instance. That statute provides:
When the state moved for a new trial setting following the jury's inability to reach a decision, McMillan filed a memorandum in opposition thereto in which it was asserted that he would be "put in jeopardy twice for the same offense" should the motion be granted. The trial court then denied the state's motion the same day. We think this is sufficient to invoke the second clause of Ind.Code § 35-1-47-2 (Burns 1979 Repl.) which permits the state to appeal orders for a defendant upon his plea of former jeopardy.
Next, McMillan argues that the appeal should be dismissed because the state's brief does not include a verbatim statement of the judgment as required by Ind.R.Ap.P. 8.3(A)(4). McMillan is in error. On page two of the state's brief, the trial court's order, which denied the state's motion for a new trial setting and dismissed the habitual offender charge, is quoted in full. That order is the basis for this appeal. McMillan's argument is, therefore, without merit.
McMillan's third and last ground for dismissal is that the state has no standing to file a motion to correct errors for the purpose of initiating a criminal appeal. He cites Ind.R.Crim.P. 16 which provides in pertinent part:
"In all criminal cases the defendant shall have sixty (60) days from the date of sentencing to file motion to correct errors." (Emphasis added.)
We have already held that the state has the requisite statutory authorization to bring this appeal. It would be anomalous for us to dismiss it for the reason suggested by defendant. While the statute and our court rules may be silent on the matter, the filing of a motion to correct errors is clearly the logical procedure to commence the state's appeal, and we hold that it was proper for the state to do so. McMillan's motion to dismiss is hereby denied.
In support of their motions to dismiss, appellees Woods and Ferguson both contend that Ind.Code § 35-1-47-2 (Burns 1979 Repl.) does not authorize the state to appeal the interlocutory rulings in their cases. The state concedes that none of the statute's provisions is applicable. Instead, it contends that Ind.R.Ap.P. 4(B)(5)(b) allows it to appeal interlocutory orders in criminal proceedings. 1 We must disagree with the state.
In State v. Sierp, (1973) 260 Ind. 57, 292 N.E.2d 245, the state attempted to appeal a trial court order granting defendant's motion for a mistrial and discharge with prejudice by reason of misconduct on the part of the prosecutor. Finding the state unable to appeal under Ind.Code § 35-1-47-2 (Burns 1979 Repl.), we noted:
"The state vigorously disputes that we are without jurisdiction to determine this appeal, contending that our jurisdiction to hear appeals is not dependent upon legislative authorization. In this regard, it appears that both parties hereto have failed to distinguish between the authority of this Court to hear appeals and that of the state to prosecute them. True, the right of this Court to hear appeals is not dependent upon legislative enactment. Bozovichar v. State (1951), 230 Ind. 358, 103 N.E.2d 680; Warren v. Indiana Telephone Co. (1940), 217 Ind. 93, 26 N.E.2d 399. But, as we have hereinbefore demonstrated, the right of the state to prosecute criminal appeals is so dependent.
" Id. at 60, 292 N.E.2d at 246.
See also State v. Holland, (1980) Ind., 403 N.E.2d 832.
This Court has adopted Ind.R.Ap.P. 4(A) and 4(B) pursuant to its rule making power as found in the Indiana Constitution. Ind.Const. art. 7, §§ 4, 6. These rules define the jurisdiction of the two appellate courts but say nothing about the state's right to prosecute a criminal appeal. More importantly, we can find no legislative authorization for the state's use of Appellate Rule 4(B) (5). 2
In only one case have we permitted a criminal appeal by the state though not expressly authorized by Ind.Code § 35-1-47-2 (Burns 1979 Repl.) 3 In State v. Palmer, (1979) Ind., 386 N.E.2d 946, the trial court, believing a statute to be unconstitutional, suspended a sentence contrary to the requirements of the law. We noted that we would have jurisdiction over the case pursuant to Ind.R.Ap.P. 4(A)(8) but proceeded with our analysis in order to find a basis for the state's right to appeal. We held that since the state could have invoked our jurisdiction had it filed an original action for a writ of mandate, we would hear the direct appeal.
As the second part of this opinion will demonstrate, the substantive issue before us is one of first impression in this state. Therefore, the state could not have sought a writ of mandate in this Court because such an action only lies when there is a clear legal duty to act and the lower court has failed to perform that duty. State ex rel. Marcrum v. Marion County Superior Court, (1980) Ind., 403 N.E.2d 806; State ex rel. Burns v. Sharp, (1979) Ind., 393 N.E.2d 127. The action cannot be used to adjudicate and establish a right or define and impose a duty. State ex rel. Socony Mobil Oil Co. v. Delaware Circuit Court, (1964) 245 Ind. 154, 196 N.E.2d 752; State ex rel. Hunter v. Winterrowd, (1910) 174 Ind. 592, 91 N.E. 956. Thus, Palmer is of no help to the state.
If the state should be allowed to appeal interlocutory orders in criminal trials, the necessary authorization should come from the legislature. The legislative branch has taken action before to expand the state's right to appeal following judicial interpretation of the relevant statute. In State v. Huebner, (1954) 233 Ind. 566, 122 N.E.2d 88, and State v. Gardner, (1954) 233 Ind. 557, 122 N.E.2d 77, this Court held that under...
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State v. Lewis
...a "nullity" entitling the State to a retrial. The State cites us to Hinton v. State, (1979) Ind., 397 N.E.2d 282; State v. McMillan, (1980) Ind., 409 N.E.2d 612; and Harlan v. State, (1921) 190 Ind. 322, 130 N.E. 413 for support for this claim. The State also brings to our attention that in......
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