Zellers v. State, 376S78

• Decision Date: 29 March 1977
• Docket Number: No. 376S78,376S78
• Citation: 266 Ind. 111,361 N.E.2d 143
• Parties: William E. ZELLERS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 143

361 N.E.2d 143

266 Ind. 111

William E. ZELLERS, Appellant, v. STATE of Indiana, Appellee.

No. 376S78.

Supreme Court of Indiana.

March 29, 1977.

Harriette Bailey Conn, Public Defender, Larry A. Landis, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Charles M. Russell, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Judge.

Appellant pleaded guilty in 1966, to the first-degree murder of his uncle's wife and was sentenced to life imprisonment. On August 8, 1969, appellant filed pro se a petition for post-conviction relief, which he designated 'Belated Verified Motion to Vacate Judgment and Withdraw a Plea of Guilty.' He also petitioned that counsel be appointed for him. The Public Defender of Indiana was appointed to represent him.

On January 14, 1971, an evidentiary hearing was had on appellant's post-conviction petition. Counsel were directed to furnish tentative findings of fact and conclusions of law by January 24, 1971, and the matter was taken under advisement. By August 15, 1972, neither the State nor the appellant had filed the tentative findings of fact and conclusions of law. The court then found against appellant and for the State on appellant's belated, verified motion to vacate judgment and withdraw a plea of guilty. The court made no findings of fact nor conclusions of law.

On August 17, 1975, appellant filed a 'Petition of Defendant for Permission to File a Belated Motion to Correct Errors' and a 'Belated Motion to Correct Errors,' pursuant to P.C. Rule 2. In the petition to file a belated motion to correct errors appellant's attorney, a deputy public defender of Indiana, accepted the responsibility for his office in failing to file a timely motion to correct errors. Attached to the petition for permission to file a belated motion to correct errors as an exhibit is a letter from appellant to the Public Defender marked 'received' on May 8, 1972, which letter requests the Public Defender to complete proceedings in the Knox Circuit Court and to appeal, if necessary. The petition for permission to file a belated motion to correct errors further states that the appellant first became aware of the denial of his P.C. 1 petition on February 19, 1975, when he was so informed during an interview with the deputy public defender at the state prison, and that at that time appellant requested an appeal.

On December 19, 1975, argument was had on the petition to file a belated motion to correct errors and the same was overruled.

Appellant first argues that no motion to correct errors was necessary as the trial court did not issue specific findings of fact and conclusions of law when he decided appellant's P.C. 1 petition. A motion to correct errors must be filed within 60 days after entry of judgment. Trial Rule 59(C). Findings of fact and conclusions of law are not a substitute for a judgment. Botteron v. Windell (1941), 109 Ind.App. 652, 37 N.E.2d 269.

P.C. Rule 1, § 6, provides in part as follows:

'The court shall make specific findings of fact, and conclusions of law on all issues presented, whether or not a hearing is held.'

The failure to make findings of fact and conclusions of law as required by the rule may be challenged by a motion to correct errors, but not in the first instance by an appeal.

In the alternative, appellant argues that the court erred as a matter of law in denying him permission to file a belated motion to correct errors. The Attorney General urges that the lapse of three years from the time of appellant's letter...