Wente v. State, No. 3-282A28
| Docket Nº | No. 3-282A28 |
| Citation | 440 N.E.2d 512 |
| Case Date | October 12, 1982 |
| Court | Court of Appeals of Indiana |
Page 512
v.
STATE of Indiana, Appellee (Plaintiff Below).
Third District.
Page 513
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
Page 514
motion to correct errors was ever filed in the trial...To continue reading
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Dobeski v. State, No. 49A02–1603–CR–440.
...and 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).[64 N.E.3d 126112] We further......
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Gorman v. State, No. 82A05-1403-CR-135
...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......
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Gorman v. State, 82A05-1403-CR-135
...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......
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Junigan v. State, No. 3-382A49
...to invoke the jurisdiction of this Court. Skolnick v. State (1979), Ind., 417 N.E.2d 1103 at 1104; Wente v. State (1982), Ind.App., 440 N.E.2d 512. Further, CR. 19 provides that if the record is not timely filed, "the right to appeal will be forfeited." Therefore, this appeal must be dismis......
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Dobeski v. State, No. 49A02–1603–CR–440.
...and 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).[64 N.E.3d 126112] We further......
-
Gorman v. State, No. 82A05-1403-CR-135
...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......
-
Junigan v. State, No. 3-382A49
...to invoke the jurisdiction of this Court. Skolnick v. State (1979), Ind., 417 N.E.2d 1103 at 1104; Wente v. State (1982), Ind.App., 440 N.E.2d 512. Further, CR. 19 provides that if the record is not timely filed, "the right to appeal will be forfeited." Therefore, this appeal must be dismis......
-
Gorman v. State, 82A05-1403-CR-135
...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......