Utterback v. State, No. 474S91

Docket NºNo. 474S91
Citation310 N.E.2d 552, 261 Ind. 685
Case DateMay 02, 1974
CourtSupreme Court of Indiana

Page 552

310 N.E.2d 552
261 Ind. 685
Dale E. UTTERBACK, Appellant,
v.
STATE of Indiana, Appellee.
No. 474S91.
Supreme Court of Indiana.
May 2, 1974.

J. E. Holwager, of Holwager & Harrell, Beech Grove, for appellant.

Theo. L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., for appellee.

Page 553

OPINION ON PETITION TO TRANSFER

PRENTICE, Justice.

This case is before us upon the plaintiff's (appellee's) petition to transfer from the Court of Appeals, Second District. The decision and opinion of that Court which [261 Ind. 686] appears at 300 N.E.2d 688 reversed the judgment of the trial court upon the first issue as hereinafter discussed. Transfer is hereby granted, and the decision of the Court of Appeals is set aside.

Defendant was convicted of second degree burglary in a trial by jury and was sentenced to imprisonment for not less than two (2) nor more than five (5) years. His appeal presents four issues, to-wit:

I. Ruling of the trial court denying the defendant's motion for discharge under Criminal Rule 4(B).

II. Ruling of the trial court permitting the State to amend the affidavit on the day of trial.

III. Denial of the defendant's challenge to the array by reason of some discussion of the case having taken place in the court room in their presence.

IV. Overruling, in advance of filing, of a defense motion for mistrial.

ISSUE I. The defendant, by counsel, filed a motion for early trial on May 18, 1972. The court, at that time and in the presence of the prosecutor and the defense counsel, set the trial for August 7, 1972. Without taking into account a possible intervention of holidays, this appears to have been fifty-four judicial days later. The defendant appeared on the date of trial and filed his motion for discharge for delay beyond fifty judicial says, relying upon Criminal Rule 4(B).

In Bryant v. State (1973), Ind., 301 N.E.2d 179 and in Layton v. State (1973), Ind., 301 N.E.2d 633, we held that under Criminal Rule 4 it was incumbent upon the defendant to protest, at his first opportunity, if his trial date was set for a date subsequent to that permitted under the rule and that his failure to do so must be regarded as acquiescence and a waiver. These cases concerned the six months rule rather than the fifty judicial day rule and had not yet been decided when the decision in the case under consideration was made. The State claimed that the defendant was estopped to invoke the rule, inasmuch as he did not object [261 Ind. 687] at the time of the setting. The Court of Appeals, however, was not impressed by this rationale and simply said: 'We do not perceive the protections afforded by Rule CR. 4(B) to require a defendant to familiarize the prosecutor and the court with critical procedures. It is the responsibility of the State to prosecute and to prosecute properly.'

On petition for rehearing, the Court of Appeals acknowledged the subsequent holding of this Court in Bryant and Layton, which had been handed down in the interim, but held that they were not applicable to the fifty judicial day rule, saying 'We do not construe Rule CR. 4(B) to require a similar objection. Such would be redundant. The fifty (50) day period specified in Rule CR. 4(B) does not commence until after the defendant has taken affirmative action, i.e., requested an early trial. Such defendant cannot properly be said to have set a trap for the prosecution by failing to assert his rights as was the apparent rationale for the holding in Bryant v. State, supra.' The Court of Appeals further regarded the provision for discharge in Rule CR. 4(B), which was not embodied in CR. 4(A) as being significant.

We did not intend, either by Bryant, supra, or Layton, supra, to imply that the defendant had laid a trap for the court or that our decision based upon waiver should not be equally applicable under both Rule CR. 4(A) and Rule CR. 4(B). The slight difference in the mechanical operation to the two rules does not warrant a different treatment when the court errs and the error is known to the party. The purpose of

Page 554

the rules is to assure early trials and not to discharge defendants. The material difference between the rules is that under the one the time starts running automatically, while under the other the defendant must trigger it with a motion. In either event, when a ruling is made that is incorrect, and the offended party is aware of it, or reasonably should be presumed to be aware of it, it is his obligation to call it to the court's attention in time to permit a correction. If he fails to do so, he should [261 Ind. 688] not be heard to complain. The courts are under legal and moral mandate to protect the constitutional rights of accused persons, but this should not entirely relieve them from acting reasonably in their own behalf. We will vigorously enforce the right to a speedy trial, but we do not intend that accused persons should escape trial by abuse of the...

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60 practice notes
  • Mayes v. State, No. 2--1172A110
    • United States
    • Indiana Court of Appeals of Indiana
    • November 13, 1974
    ...Municipal Court to the Criminal Court until May 25, 1972 and was not tried until July 17, 1972. In Utterback v. State (1974), Ind., 310 N.E.2d 552, our Supreme Court construed the discharge provision of Rule CR. 4(B) and held that a defendant must object prior to expiration of the time prov......
  • Bardonner v. State, No. 29A04-9107-CR-225
    • United States
    • Indiana Court of Appeals of Indiana
    • March 12, 1992
    ...N.E.2d 326. Defendant should have moved to strike, discharge the jury panel, or challenge the array. See, e.g., Utterback v. State (1974), 261 Ind. 685, 310 N.E.2d 552, and Didio v. State (1984), Ind., 471 N.E.2d 1117, The majority relies upon Robinson v. State (1973), 260 Ind. 517, 297 N.E......
  • Dean v. State, No. 580S122
    • United States
    • Indiana Supreme Court of Indiana
    • April 14, 1982
    ...(1975) 163 Ind.App. 546, 550, 325 N.E.2d 227, 230; State v. Henry, (1975) 163 Ind.App. 305, 323 N.E.2d 258. See Utterback v. State, (1974) 261 Ind. 685, 687, 310 N.E.2d 552, In their brief, Defendants attach some significance to trial counsel's April 16, 1979 objection to a continuance unti......
  • 84 Hawai'i 191, State v. Schmidt, No. 17185
    • United States
    • Court of Appeals of Hawai'i
    • January 17, 1997
    ...prosecution into plea bargaining attempts" and then demand dismissal after expiration of the speedy trial period); cf. Utterback v. State, 261 Ind. 685, 310 N.E.2d 552, 554 (1974) ("We will vigorously enforce the right to a speedy trial, but we do not intend that accused persons should esca......
  • Request a trial to view additional results
60 cases
  • Mayes v. State, No. 2--1172A110
    • United States
    • Indiana Court of Appeals of Indiana
    • November 13, 1974
    ...Municipal Court to the Criminal Court until May 25, 1972 and was not tried until July 17, 1972. In Utterback v. State (1974), Ind., 310 N.E.2d 552, our Supreme Court construed the discharge provision of Rule CR. 4(B) and held that a defendant must object prior to expiration of the time prov......
  • Bardonner v. State, No. 29A04-9107-CR-225
    • United States
    • Indiana Court of Appeals of Indiana
    • March 12, 1992
    ...N.E.2d 326. Defendant should have moved to strike, discharge the jury panel, or challenge the array. See, e.g., Utterback v. State (1974), 261 Ind. 685, 310 N.E.2d 552, and Didio v. State (1984), Ind., 471 N.E.2d 1117, The majority relies upon Robinson v. State (1973), 260 Ind. 517, 297 N.E......
  • Dean v. State, No. 580S122
    • United States
    • Indiana Supreme Court of Indiana
    • April 14, 1982
    ...(1975) 163 Ind.App. 546, 550, 325 N.E.2d 227, 230; State v. Henry, (1975) 163 Ind.App. 305, 323 N.E.2d 258. See Utterback v. State, (1974) 261 Ind. 685, 687, 310 N.E.2d 552, In their brief, Defendants attach some significance to trial counsel's April 16, 1979 objection to a continuance unti......
  • 84 Hawai'i 191, State v. Schmidt, No. 17185
    • United States
    • Court of Appeals of Hawai'i
    • January 17, 1997
    ...prosecution into plea bargaining attempts" and then demand dismissal after expiration of the speedy trial period); cf. Utterback v. State, 261 Ind. 685, 310 N.E.2d 552, 554 (1974) ("We will vigorously enforce the right to a speedy trial, but we do not intend that accused persons should esca......
  • Request a trial to view additional results

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