Wente v. State

Citation440 N.E.2d 512
Decision Date12 October 1982
Docket NumberNo. 3-282A28,3-282A28
PartiesMona WENTE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtCourt of Appeals of Indiana

Howard S. Grimm, Jr., Fort Wayne, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

A jury found Mona Wente guilty of dealing in a schedule I controlled substance, a class B felony. Wente contends that her prior acquittal by a Steuben County jury for a similar transaction bars this prosecution against her in DeKalb County. However, because Wente's motion to correct errors was not timely filed her contention is waived.

Appeal dismissed.

The trial court sentenced Wente on August 20, 1981 and her motion to correct errors was filed on October 20, 1981, sixty-one days after the date of sentencing.

Ind.Rules of Procedure, Criminal Rule 16 reads in pertinent part: "In all criminal cases the defendant shall have sixty days from the date of sentencing to file motion to correct errors." In computing this sixty day period, Ind.Rules of Procedure, Trial Rule 6 provides that:

"[T]he day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed is to be included unless it is:

"(1) a Saturday,

"(2) a Sunday,

"(3) a legal holiday as defined by state statute, or

"(4) a day the office in which the act is to be done is closed during regular business hours.

"In any event, the period runs until the end of the next day that is not a Saturday, a Sunday, a legal holiday, or a day on which the office is closed."

Thus, under these rules, the sixtieth day from the date of sentencing was Monday, October 19, 1981. This Monday was neither a legal holiday nor a day in which the DeKalb County Clerk's office was closed. Therefore, Wente's motion to correct errors was not timely filed.

The dissent believes Wente's case should be adjudicated on its merits because this Court granted Wente's petition to file the record of the proceedings late. This oversimplifies the interrelationship of several Indiana Rules of Court.

CR. 16 provides that, "Trial Rule 59 (Motion to Correct Errors) will apply to criminal proceedings insofar as applicable for the conduct of criminal procedure." Civil cases under TR. 59 have held that the timely filing of the motion to correct errors is a jurisdictional act and a late filing subjects the appeal to dismissal. E.g., Murray v. Murray (1974), 160 Ind.App. 72, 309 N.E.2d 831, 832. Jurisdiction is not reconferred on Wente by this Court's granting of Wente's petition to file the record late. In Duarte v. State (1979), Ind.App., 396 N.E.2d 693, 694, the second district stated that when this Court's jurisdiction was not otherwise timely invoked, this Court's permission to file a belated appeal was granted in error. Duarte held that permission to file a belated appeal granted in error does not necessarily justify consideration of the appeal on its merits. Id., at 694 (citing, among other cases, Dawson v. Wright (1955), 234 Ind. 626, 129 N.E.2d 796 which held that when Appellate Court's jurisdiction has not otherwise been timely invoked, extensions of time granted in error do not confer jurisdiction.)

Wente's proper remedy is under Indiana Rules of Conviction, Post Conviction Rule 2 Sec. 1, not Sec. 2. Here, no timely and adequate motion to correct errors was ever filed in the trial court. By not reading this implicit requirement into PC. 2 Sec. 2, the dissent renders meaningless PC. 2 Sec. 1 and all case law of this state regarding the timely filing of the motion to correct errors as being a prerequisite to appellate review. This is simply common sense. Otherwise, the remedy for filing the motion to correct errors late is to be sure and file the record late.

It is irrelevant that Wente may petition the trial court for permission to file a belated motion to correct errors under PC. 2 Sec. 1. It is not our privilege to elevate the practical expediency of case disposition over the jurisdictional time limits mandated by our rules. We must apply the sixty day time limit in which to file a motion to correct errors to all criminal defendants and all civil litigants evenhandedly.

Although this Court has the inherent power to entertain an appeal even though jurisdictional time limits have expired, such discretion is exercised "only in rare and exceptional cases, such as in matters of great public interest, or where extraordinary circumstances exist." Constanzi v. Ryan (1977), 174 Ind.App. 454, 368 N.E.2d 12, 16. This Court will not use that power to relieve a party from the consequences of his own negligence, such as failure to calculate the time limits correctly. Tourkow v. Hoover (1952), 122 Ind.App. 676, 108 N.E.2d 195, 196. Since this is not a case of great public interest, or one in which extraordinary circumstances exist, we should not invoke our inherent power to hear this appeal.

The failure to timely file Wente's motion to correct errors precludes appellate review. Skolnick v. State (1981), Ind., 417 N.E.2d 1103, 1104; Spall v. State (1973), 156 Ind.App. 189, 295 N.E.2d 852, 853.

Appeal dismissed. 1

GARRARD, J., concurs.

HOFFMAN, P. J., dissents with opinion.

HOFFMAN, Presiding Judge, dissenting.

I dissent. I cannot agree with the majority's position that Wente has waived the contentions in her appeal by virtue of the late filing of her motion to correct errors.

Indiana Rules of Procedure, Post-Conviction Rule 2(2), reads:

"Any defendant convicted after a trial may petition the the [sic] appellate tribunal having jurisdiction by reason of the sentence imposed for permission to file a belated appeal where:

(a) he filed a motion to correct error which was overruled;

(b) no appeal was perfected for the defendant;

(c) the failure to perfect the appeal was not due to the fault of...

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6 cases
  • Dobeski v. State, 49A02–1603–CR–440.
    • United States
    • Court of Appeals of Indiana
    • 12 d1 Dezembro d1 2016
    ...consequently excluding date of the triggering event, i.e., date on which the parolee was extradited), trans. denied; Wente v. State, 440 N.E.2d 512, 513 (Ind.Ct.App.1982) (applying T.R. 6(A) to compute the defendant's time to file a motion to correct error).[12] We further note that the met......
  • Gorman v. State, 82A05-1403-CR-135
    • United States
    • Court of Appeals of Indiana
    • 22 d3 Outubro d3 2014
    ...in that fashion. Dillman v. State, No. 53A05-1306-CR-274 (Ind. Ct. App. Aug. 29, 2014). The Dillman opinion cited Wente v. State, 440 N.E.2d 512, 513 (Ind. Ct. App. 1982), in which we held that the time limits for filing a motion to correct error and initiating appeals were "jurisdictional.......
  • Gorman v. State
    • United States
    • Court of Appeals of Indiana
    • 22 d3 Outubro d3 2014
    ...the bond in that fashion. Dillman v. State, No. 53A05-1306-CR-274 (Ind.Ct.App. Aug. 29, 2014). The Dillman opinion cited Wente v. State, 440 N.E.2d 512, 513 (Ind.Ct.App. 1982), in which we held that the time limits for filing a motion to correct error and initiating appeals were "jurisdicti......
  • Phovemire v. State , 02A05–1106–CR–304.
    • United States
    • Court of Appeals of Indiana
    • 9 d5 Dezembro d5 2011
    ...rare and exceptional cases, such as in matters of great public interest, or where extraordinary circumstances exist.” Wente v. State, 440 N.E.2d 512, 514 (Ind.Ct.App.1982) (internal quotations omitted). Phovemire makes no argument that this is such a case, and our review of the record does ......
  • Request a trial to view additional results

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