Taylor v. State
| Decision Date | 18 July 1979 |
| Docket Number | No. 2-1078A363,2-1078A363 |
| Citation | 391 N.E.2d 1182,181 Ind.App. 392 |
| Parties | John E. TAYLOR, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
George K. Shields, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.
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 ().
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 (). 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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