Taylor v. State, 2-1078A363

CourtCourt of Appeals of Indiana
Citation391 N.E.2d 1182,181 Ind.App. 392
Docket NumberNo. 2-1078A363,2-1078A363
PartiesJohn E. TAYLOR, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
Decision Date18 July 1979

George K. Shields, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

Defendant-appellant John E. Taylor, after a bench trial, was convicted of Burglary, a Class C felony, IC 35-43-2-1 (Burns Code Ed., Supp.1977). In order to determine the issue properly before this court, the following chronology of events is relevant:

                May 30, 1978       Sentencing held
                July 24, 1978      Motion to Correct Errors filed
                July 25, 1978      Motion to Correct Errors overruled
                                   Pauper Counsel, present counsel
                                   appointed for appeal
                July 31, 1978      Praecipe filed.
                October 20, 1978   Record of Proceedings filed with
                                   the Clerk of the Supreme Court
                                   and Court of Appeals.
                November 16, 1978  Petition for Permission to file
                                   Belated Motion to Correct Errors
                                   filed with trial court; Supplemental
                                   Praecipe filed; Petition for
                                   Permission to Incorporate Recent
                                   Trial Court Proceedings in Record
                                   of Proceedings filed with Clerk
                                   of Supreme Court and Court of
                                   Appeals.
                November 17, 1978  Permission to file Belated Motion
                                   to Correct Errors granted by
                                   trial court; Belated Motion
                                   to Correct Errors filed and
                                   overruled.
                November 28, 1978  Petition to Incorporate granted
                                   by the Chief Judge of the Court
                                   of Appeals.
                

Although both Taylor and the State proceed on the assumption that the issues raised in this appeal are those preserved in Taylor's Belated Motion to Correct Errors, we Sua sponte note that the issues raised in this appeal are those preserved in Taylor's original Motion to Correct Errors.

Pursuant to Indiana Rules of Procedure, Appellate Rule 3(A), 1 the appellate tribunal acquires jurisdiction on the date the record of the proceedings is filed with the Clerk of the Supreme Court and Court of Appeals. Bright v. State, (1972) 259 Ind. 495, 289 N.E.2d 128; Beard v. State, (1978) Ind.App., 375 N.E.2d 270. Once the appellate tribunal acquires jurisdiction, the trial court is deprived of any further jurisdiction over the action. Logal v. Cruse, (1977) Ind., 368 N.E.2d 235 Cert. denied 435 U.S. 943, 98 S.Ct. 1523, 55 L.Ed.2d 539; Bright v. State, supra; Beard v. State, supra. Cf., Davis v. State, (1977) Ind., 368 N.E.2d 1149 (provides the procedures where an appellant from a criminal conviction seeks to bring a petition for post-conviction relief pending resolution of his appeal).

Thus, in the case Sub judice, this appellate tribunal acquired jurisdiction over the action on October 20, 1978 and the trial court was without jurisdiction to entertain Taylor's Petition for Permission to file Belated Motion to Correct Errors or his Belated Motion to Correct Errors. Hence, the issues on appeal are those preserved in Taylor's original Motion to Correct Errors. 2

Furthermore, the fact that the Chief Judge of the Court of Appeals granted Taylor's Petition to Incorporate does not aid Taylor. The facts Taylor alleged in his petition were, at best, misleading. Paragraph Five (5) of Taylor's petition to this Court avers:

5. Counsel for defendant was granted permission to file, and did file, with the trial court a Belated Motion to Correct Errors, which was overruled the same day.

The record before this Court reveals, however, that Taylor was not granted permission to file a Belated Motion to Correct Errors until the day after he filed his petition with this Court.

Moreover, since no dates concerning the filing of the belated motion were averred in Taylor's petition before this Court, this Court could not but assume that the proceedings subsequent to the overruling of Taylor's original Motion to Correct Errors were entirely proper. Cf., Gregory v. State, (1979) Ind., 386 N.E.2d 675 (trial court has authority to grant permission to file an amended motion to correct errors where sixty days has not yet expired since entry of judgment). The complete record containing the appropriate dates, however, reveals otherwise.

Thus, turning to Taylor's original Motion to Correct Errors, the issue preserved in this appeal is whether there was sufficient evidence to sustain Taylor's conviction. The record reveals the following facts: On November 24, 1977 Officer Michael Schmitt of the Indianapolis Police Department was on routine patrol when he received a radio dispatch requesting him to check the B & D Superette at 2459 North Guilford. Upon...

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10 cases
  • Wisehart v. State
    • United States
    • Indiana Supreme Court
    • March 19, 1998
    ...with the notice of insanity statute. See Badgley v. State, 226 Ind. 665, 676, 82 N.E.2d 841, 845 (1948); Taylor v. State, 181 Ind.App. 392, 394 n. 2, 391 N.E.2d 1182, 1183 n. 2 (1979). It was not deficient performance to proceed under the insanity notice Second, Wisehart contends that trial......
  • Carter v. State
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    ...there is substantial evidence of probative value to support each element of the offense, the judgment will be affirmed. Taylor v. State, (1979) Ind.App., 391 N.E.2d 1182. The facts most favorable to the State reveal Carter entered a bedroom in which the victim was asleep in bed. He went to ......
  • Hudson v. Hudson
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    • Indiana Appellate Court
    • October 21, 1985
    ...of Logal v. Cruse, supra, 368 N.E.2d 235 (civil) and Davis v. State, supra, 368 N.E.2d 1149 (criminal). In Taylor v. State (1979) 2d Dist. 181 Ind.App. 392, 391 N.E.2d 1182, a criminal case, we relied upon Logal v. Cruse, supra, as well as upon Bright v. State, supra, 289 N.E.2d 128, and Da......
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    • United States
    • Indiana Supreme Court
    • January 7, 1981
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