Tacy, Matter of

• Decision Date: 10 November 1981
• Docket Number: No. 3-1280A369,3-1280A369
• Citation: 427 N.E.2d 919
• Parties: In the Matter of Aaron TACY.
• Court: Indiana Appellate Court

Page 919

427 N.E.2d 919

In the Matter of Aaron TACY.

No. 3-1280A369.

Court of Appeals of Indiana, Third District.

Nov. 10, 1981.

Linley E. Pearson, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellee.

HOFFMAN, Presiding Judge.

This appeal arises from a juvenile court waiver order in which jurisdiction over Aaron Tacy, a juvenile 14 years of age, was waived by the Elkhart Circuit Court, Juvenile Division, to the Elkhart Superior Court. Tacy is charged with attempted murder, resisting arrest while drawing and using a deadly weapon, burglary, criminal mischief, and theft.

These charges arose from an incident which occurred on April 9, 1980 in Elkhart County. Officer Webb and his partner were on patrol when they received and answered a radio dispatch that a suspicious vehicle was at a local grocery store. Pulling into the lot, Webb saw a pickup truck near an entrance to the building. He went to the passenger's side and began talking with the occupant, Tacy. Webb had Tacy leave the truck and when questioned, Tacy gave a false name, address, and telephone number. He said the truck belonged to a friend who was inside the store. A check revealed the truck had been stolen and Webb arrested Tacy. The two officers were joined by a third officer as they were placing Tacy under arrest. Tacy shouted obscenities and began to struggle. The officers placed Tacy on the ground and in the scuffle he drew a .38 caliber weapon and fired two shots, one of which struck Officer Webb in the shoulder. Webb suffered light powder burns. Tacy ran and was shot twice in the arm by another officer. Tacy entered the store and then surrendered to the police. A second suspect was also arrested in the store.

Tacy was taken by ambulance to the Elkhart General Hospital and hospitalized for treatment of the gunshot wounds. He was subsequently placed under guard for a period of time and later transported to the Elkhart County Jail.

Tacy had not been in school for months and testified he had been with his cousin for four or five days prior to the shooting. They had run away, broken into a house, consumed alcohol from that house and marijuana they had obtained from friends. They had eaten in that house, stolen weapons and other items, and were in a stolen automobile.

The State argues that based upon State ex rel. Snellgrove v. Porter Circuit (1979), Ind., 386 N.E.2d 680 this appeal is improper. We are aware that in Snellgrove, which involved a petition for a writ of mandate to permit a direct appeal, the Indiana Supreme Court said an appeal from a waiver order, valid upon its face, must abate pending a final determination of the criminal prosecution authorized by the waiver.

However, in the present case, unlike in Snellgrove, Tacy brought this appeal pursuant to Ind.Rules of Procedure, Appellate Rule 4(B)(5). An appeal pursuant to AR. 4(B)(5) is an appeal by grace. It makes a non-appealable interlocutory order appealable only by act of grace of the trial court and by act of grace of the Court of Appeals. With AR. 4(B)(5) the Court of Appeals has specifically been entrusted with power to grant appeals by favor which are not available by right. Costanzi v. Ryan (1977), Ind.App., 368 N.E.2d 12. Therefore, the acceptance of this immediate appeal is within our discretion and the issues will be decided on their merits at this time.

The first issue raised by Tacy is whether the juvenile court lost jurisdiction over him by failing to comply with the time limits prescribed by IC 1971, 31-6-7-6(b) (Burns 1980 Repl.). IC 1971, 31-6-7-6(b) states:

"If the child is in detention and a petition has been filed, either a fact-finding hearing or a waiver hearing must be commenced within twenty (20) days (excluding Saturdays, Sundays, and legal holidays) after the petition is filed. If the child is not in detention, the hearing must be commenced within sixty (60) days (excluding Saturdays, Sundays, and legal holidays) after the petition is filed."

Tacy specifically argues that the petition alleging delinquency was filed April 18, 1980 and the waiver hearing was not commenced until twenty-eight working days later on May 28, 1980.

This is a case of first impression in this state and thus calls for statutory construction. This necessity arises in light of IC 1971, 31-6-4-9 which provides:

"(a) The prosecutor may request the juvenile court to authorize the filing of a petition alleging that a child is a delinquent child; the attorney for the county department may request the juvenile court to authorize the filing of a petition alleging that a child is a delinquent child defined by section 1(b)(2) of this chapter. The person requesting the authorization shall represent the interests of the state at this proceeding and at all subsequent proceedings on the petition.

"(b) The juvenile court shall consider the preliminary inquiry and the evidence of probable cause. The court shall authorize the filing of a petition if it finds probable cause to believe that the child is a delinquent child and that it is in the best interests of the child or the public that the petition be filed."

In the case at hand, the juvenile court authorized the filing of the petition alleging delinquency on April 29, 1980 and the waiver hearing was commenced twenty working days later on May 28, 1980. Therefore, it is necessary to determine when the petition alleging delinquency is "filed" for purposes of tolling the twenty-day limitation in IC 1971, 31-6-7-6(b).

When called on to interpret statutory words or phrases, this Court does not look solely to the isolated word or phrase, but to the act as a whole. Matter of Estate of Souder (1981), Ind.App., 421 N.E.2d 12. If there is room for more than one interpretation of a statute, the court should construe the statute in such a way as to give effect to the general intent of the Legislature. Ind. Dept. of State Revenue v. Endress & Hauser (1980), Ind.App., 404 N.E.2d 1173. And where there are two statutes on the same general subject, they should be...