Utterback v. State, 2--173A5

• Decision Date: 04 September 1973
• Docket Number: No. 2--173A5,2--173A5
• Citation: 300 N.E.2d 688
• Court: Indiana Appellate Court
• Parties: Dale E. UTTERBACK, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

Page 688

300 N.E.2d 688

Dale E. UTTERBACK, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 2--173A5.

Court of Appeals of Indiana, Second District.

Sept. 4, 1973.

Rehearing Denied Oct. 29, 1973. See 302 N.E.2d 514. Opinion Superseded 310W.E.2d 552. J. E. Holwager, Holwager & Harrell, Beech Grove, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., for plaintiff-appellee.

SULLIVAN, Judge.

The matter before us involves application of Rule CR. 4(B) which specifies:

'(B) Defendant in jail--Motion for early trial. If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within fifty (50) judicial days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such fifty (50) judicial days because of the congestion of the court calendar. Provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule.'

By reason of our determination upon this issue, we need not consider other assertions of error in this appeal from a conviction of Second Degree Burglary.

Rule CR. 4(B) is not self-executing and its application depends upon the filing by defendant of a proper Motion for Speedy Trial. Knight v. State (1973 Ind.Ct.App.) 296 N.E.2d 892; Gross v. State (1972) Ind., 278 N.E.2d 583. Such Motion was filed by appellant-defendant on May 18, 1972. The Motion was granted and the cause set for trial by jury for August 7, 1972. On the latter date, appellant filed his Motion for Discharge alleging the application of Rule CR. 4. This Motion was summarily denied and the cause proceeded to trial resulting in a judgment of conviction.

It is readily apparent that defendant's trial was conducted more than fifty judicial days following the filing of the Motion for Speedy Trial. The record further discloses that appellant was incarcerated during the crucial period; that he sought no continuances nor that the delay was in any way attributable to him. The record does not reflect, nor does the State argue that the failure to try appellant within the requisite period was occasioned by congestion of the court calendar. Compare Harris v. State (1971) 256 Ind. 464, 269 N.E.2d 537. The State contends...