State v. Roberts

• Decision Date: 21 December 1976
• Docket Number: No. 1--576A81,1--576A81
• Citation: 358 N.E.2d 181,171 Ind.App. 537
• Parties: STATE of Indiana, Plaintiff-Appellant, v. Michael D. ROBERTS, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 181

358 N.E.2d 181

171 Ind.App. 537

STATE of Indiana, Plaintiff-Appellant, v. Michael D. ROBERTS, Defendant-Appellee.

No. 1--576A81.

Court of Appeals of Indiana, First District.

Dec. 21, 1976.

Theodore L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, for plaintiff-appellant.

John M. Howard, Jr., Howard & Lawson, Danville, for defendant-appellee.

ROBERTSON, Chief Judge.

Plaintiff-appellant, State of Indiana (State), brings this appeal alleging that the trial court erred when it granted the motion to dismiss and for immediate discharge of defendant-appellee, Michael D. Roberts (Roberts) and discharged and released Roberts from custody.

We affirm.

The facts pertinent to this appeal follow. Roberts had been in lawful custody at the Indiana Boys' School from which he had escaped several times prior to an escape on June 23, 1974. As a consequence of the latter escape, a petition was filed in the Hendricks Circuit Court, exercising juvenile jurisdiction, seeking to declare Roberts a delinquent child. Thereafter, on March 19, 1975, following a hearing on the petition, the juvenile court waived jurisdiction of Roberts and ordered the authorities at the Indiana Boys' School to submit Roberts to the custody of the Sheriff of Hendricks County, the sheriff to hold him in custody to stand trial as an adult for the crime of escape from lawful detention. ¹

There were no further proceedings until May 8, 1975, when the State filed its information in Hendricks Superior Court, and the court assumed jurisdiction over Roberts and ordered the issuance of an arrest warrant. On the same date, Roberts filed with the Hendricks Circuit Court a petition for writ of habeas corpus, which petition was later denied.

On May 9, 1975, when Roberts appeared before the Hendricks Superior Court for arraignment, pauper counsel was appointed and the arraignment was continued until June 23, 1975, at which time Roberts filed his motion to dismiss and for immediate discharge. A hearing was conducted, and the motion was thereafter taken under advisement.

The trial court, on July 21, 1975, sustained Roberts' motion and issued the following order:

'And afterwards to-wit: July 21, 1975, the court having taken defendant's Motion to Dismiss and for Immediate Discharge under advisement on June 23, 1975, and now being duly advised in the premises, the Court now finds that said motion should be sustained. The court now grants Defendant's Motion to Dismiss and for Immediate Discharge, and said defendant is now ordered discharged and released from custody of the Sheriff of Hendricks County herein (clk certify copy of this order to the Sheriff of Hendricks County and notify all attorneys herein).'

From the overruling of its timely filed motion to correct errors, the State brings this appeal.

It is the State's contention that the circumstances regarding Roberts' incarceration from March 19, 1975, until May 9, 1975, are such that he was not brought within the purview of Ind. Rules of Procedure, Criminal Rule 4 (CR. 4), IC 1971, 35--4--1--1 (Burns Code Ed.), or any other statute, the provisions of which would authorize his discharge.

At the outset, it is to be noted that the detention of Roberts from March 19, 1975, until May 9, 1975, was not pursuant to a formal felony charge and was not the result of a formal arrest. ² Thus, there were not present here the events which should normally fix the responsibilities of the State and set into motion the procedural machinery established by statute and by the courts to safeguard various constitutional rights of the accused. Not the least among those rights is the right to a speedy trial. U.S.Const. amend. VI; Ind.Const. art. 1, § 12.

While it is true that Roberts was in custody prior to the waiver of juvenile jurisdiction, his custody by the Sheriff of Hendricks County beginning March 19, 1975, must be viewed from a different perspective. This latter custody related to the eventual charge of escape from lawful detention, and, in some respects, such custody is as an initial custody where the 'accused' was theretofore at liberty. Thus it is that once the latter custody became discreet and identifiable from the previous and underlying custody by the Indiana Boys' School, Roberts should have been accorded the rights available to any other accused, subject only to that underlying custody by the Boys' School.

The State has argued that no section of CR. 4 is applicable until a charge is filed and that, in any event, a speedy trial must be requested by a defendant before CR. 4(B) begins to operate.

The State reads well the letter of the rule, but perceives not its spirit. Contrary to the position of the State, it is our view that the application of CR. 4 must be predicated upon the presumption that the State will be diligent in charging defendants. Any other view necessarily implies that a defendant's right to a speedy trial may be avoided merely by delaying an indictment or affidavit indeterminately. Such an implication is unacceptable.

The United States Supreme Court has addressed the issue of pre-indictment delay. In United States v. Marion (1971), 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468, as clarified by Dillingham v. United States (1975), 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205, it was held that the protections of the speedy trial provision of the Sixth Amendment attached either upon formal indictment or information (affidavit) or upon arrest, whichever is earlier.

To be consistent with Marion, supra and Dillingham supra, our CR. 4(B) should be construed as imposing a specific period (70 days) after indictment or affidavit appended to a reasonable period encompassing the time from arrest to such indictment or affidavit. What constitutes a reasonable period will assuredly vary on a case by case analysis, but in the instant case we find no justification...