Vukadinovich v. State, 37A03-8712-CR-00342

Decision Date16 June 1988
Docket NumberNo. 37A03-8712-CR-00342,37A03-8712-CR-00342
PartiesBrian VUKADINOVICH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Appellate Court

Calvin K. Hubbell, Law Offices of Calvin K. Hubbell, Valparaiso, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

After a bench trial Brian Vukadinovich was convicted of resisting law enforcement, a class A misdemeanor, and no valid operator's license, a class C infraction. 1 He was sentenced to one year's imprisonment, suspended to thirty days to be served on consecutive forty-eight hour weekends, and fined $50.00 plus court costs for resisting law enforcement. 2 He was additionally fined $1.00 plus court costs for operating a motor vehicle without a valid operator's license. 3 The issue for this court's review is:

Whether the trial court committed fundamental error in denying Vukadinovich's request for a jury trial?


On October 8, 1986, Vukadinovich was present at the scene of an automobile accident in rural Jasper County, Indiana. In their efforts to clear the area for emergency medical personnel, police officers at the scene asked everyone who was not a family member of those involved in the accident to return to their vehicles. Vukadinovich failed to leave as requested and was specifically asked three more times by a police officer who had bumped into him to leave the scene. After the third request, Vukadinovich swore at the officer, returned to his vehicle and left the scene of the accident.

One week later, Vukadinovich was charged with resisting law enforcement and driving with a suspended license. A police check with the Indiana Bureau of Motor Vehicles indicated that Vukadinovich did not have a valid operator's license for his car, although he had paid a fee for an operator's license on September 29, 1986.

Vukadinovich appeared pro se at the arraignment held on October 20, 1986, and plead not guilty to both charges. Vukadinovich executed a form entitled "Your Rights" which inter alia advised him of his right to a jury trial. The trial court ascertained that Vukadinovich had read and understood the contents of the document, advised him of his right to an attorney, and scheduled an "Omnibus/bench hearing" for January 19, 1987.

After a continuance on the trial court's own motion, the cause proceeded on February 9, 1987. Again without counsel, Vukadinovich appeared at the "Omnibus/bench hearing" and submitted a handwritten jury demand and a handwritten motion to produce. On the same date, the trial court denied the jury demand, stating that the statutory time limit had expired. 4 However, the motion to produce was granted, and the cause set for March 27, 1987.

On February 19, 1987, Calvin K. Hubbell, Attorney at Law, entered his appearance on behalf of Vukadinovich. The cause was continued to June 5, 1987 and, in the absence of further jury demands tendered by Vukadinovich, proceeded by bench on that date.

Vukadinovich raises the issue of whether the trial court committed fundamental error in denying his jury demand. Specifically, he contends that the trial court never advised him of the consequences of failing to demand a trial by jury not later than ten days prior to the trial date, and that this omission dictates reversal. We agree.

Because this case involves a misdemeanor offense, we refer to Indiana Rules of Procedure, Criminal Rule 22, adopted January 1, 1981, which states:

A defendant charged with a misdemeanor may demand a trial by jury by filing a written demand therefore not later than ten (10) days before his scheduled trial date. The failure of a defendant to demand a trial by jury as required by this rule shall constitute a waiver by him of trial by jury unless the defendant has not had at least fifteen (15) days advance notice of his scheduled trial date and of the consequences of his failure to demand a trial by jury.

We have previously addressed the issue of whether the provisions of C.R. 22 require that a defendant be specifically advised of the "10-day rule" included therein. Our decisions have consistently held that it is fundamental error for a court to deny a defendant a jury trial without eliciting a waiver from him personally. A valid waiver cannot be made pursuant to C.R. 22 in the absence of an advisement by the trial court of the consequences of a failure to demand a trial by jury not later than ten days prior to the trial date. See Casselman v. State (1985), Ind.App., 472 N.E.2d 1310; Suits v. State (1983), Ind.App., 451 N.E.2d 375; Wilson v. State (1983...

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12 cases
  • Vukadinovich v. Board of School Trustees of Michigan City Area Schools
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • November 24, 1992
    ...Court conviction because it found that the trial court had improperly denied Vukadinovich his right to a jury trial. Vukadinovich v. State, 529 N.E.2d 837 (Ind.App.1988).2 We note also that at least two members of the Board, Greg Hanke and Karen Janus, were not Board members in 1986 when Vu......
  • Horton v. State
    • United States
    • Indiana Supreme Court
    • April 21, 2016
    ...; Zakhi v. State, 560 N.E.2d 683, 684 (Ind.Ct.App.1990) ; Shady v. State, 524 N.E.2d 44, 45 (Ind.Ct.App.1988) ; Vukadinovich v. State, 529 N.E.2d 837, 839 (Ind.Ct.App.1988) ; Marcum v. State, 509 N.E.2d 895, 896 (Ind.Ct.App.1987) ; Wilson v. State, 453 N.E.2d 340, 341 (Ind.Ct.App.1983) ; Cu......
  • Eldridge v. State
    • United States
    • Indiana Appellate Court
    • January 27, 1994
    ...and intelligent waiver of the right. See Capps v. State (1992), Ind.App., 598 N.E.2d 574, 577, trans. denied; Vukadinovich v. State (1988), Ind.App., 529 N.E.2d 837, 839; Casselman v. State (1985), Ind.App., 472 N.E.2d 1310, 1311. Also, the waiver must be elicited from the defendant persona......
  • Fiandt v. State
    • United States
    • Indiana Appellate Court
    • October 11, 2013
    ...than ten days prior to the trial date.’ ” Hanna–Womack v. State, 623 N.E.2d 439, 440 (Ind.Ct.App.1993) (quoting Vukadinovich v. State, 529 N.E.2d 837, 839 (Ind.Ct.App.1988)). And we have long recognized, in the context of the defendant's constitutional jury trial right under Criminal Rule 2......
  • Request a trial to view additional results

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