Walls v. State
| Decision Date | 25 November 1992 |
| Docket Number | No. 49A02-9207-CR-325,49A02-9207-CR-325 |
| Parties | Frederick WALLS, Appellant-Defendant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
While we sympathize with the efforts of Appellant to have his appeal considered upon the merits, the present posture of the case does not afford this court that latitude.
On July 12, 1990, a jury convicted Frederick Walls of Burglary, a Class B felony, and Criminal Confinement, a Class D felony. Prior Record at 42-43. 2 A sentencing hearing was held on August 13, 1990. Prior Record at 365. Walls received a ten-year sentence, of which two were suspended, for the burglary conviction; a one-and-one-half year sentence for the confinement conviction ran concurrent to the burglary sentence. Prior Record at 379. Walls filed the first praecipe and notice of appeal on September 10, 1990; the record of proceedings followed on January 28, 1991. Prior Record at 1. On March 26, 1991, this court dismissed the September, 1990 appeal because Walls failed to comply with an order to show cause why the appeal should not be dismissed for want of final judgment. 3 Record at 14-15. See State ex rel. Smith v. Starke Circuit Court (1981) 275 Ind. 483, 417 N.E.2d 1115 (). Walls attempted to remedy this defect by petitioning the trial court for a nunc pro tunc entry on April 2, 1992. Record at 18. The trial court granted the petition on April 10, 1992. Record at 21.
We understand why the now regular judge of the court, Judge Darden, felt it appropriate that the then regular judge of the court, Judge Jimison, be the person or authority to validate the 1990 verdict, judgment, and sentence. Judge Jimison, however, did so by way of a purported nunc pro tunc order making such validation effective as of July 12, 1990, and August 13, 1990, respectively. Record at 21. Even were we to find some written memorialization justifying a nunc pro tunc order in this circumstance, that order creates quite a different impediment to the consideration of the instant appeal.
Clearly, the original praecipe filed on September 10, 1990, cannot serve as the impetus for the present appeal because the present nunc pro tunc entry was not of record and could not be thereby included in a record of proceedings which took place prior to September 10, 1990. Furthermore, the praecipe herein filed on April 29, 1992, cannot serve as a timely praecipe because it occurs some two years after the date of the final judgment as specifically set forth in the nunc pro tunc entry. The April, 1992 appeal would thereby be subject to dismissal for failure to file a timely praecipe. Ind.Appellate Rule 2(A). 4
However, we may acknowledge that to focus upon the time of filing of the respective praecipes might seem to elevate form over substance and to penalize Appellant for erroneously utilizing a nunc pro tunc entry when an entry of validation dated April 10, 1992, might have been effective for a review of this appeal upon its merits.
Be that as it may, a more important and unavoidable impediment exists with respect to the consideration of this appeal. Indiana Code Sec. 33-4-7-8 clearly sets forth that a magistrate may not conduct a sentencing hearing. When the former appeal was dismissed and Appellant's counsel sought resurrection of the matter, only the regular judge, a duly appointed special judge or a judge pro tem could conduct the sentencing hearing. Schwindt v. State (1992) 2d Dist. Ind.App., 596 N.E.2d 936 (). It is solely within the power and authority...
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