ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PATRICK R. RAGAINS JEFFREY A. MODISETT
Smith, Ragains & Cotton Attorney General of Indiana
THOMAS D. PERKINS
Deputy Attorney General
NATHAN E. SCHWARTZ, ) ) Appellant-Defendant, ) ) vs. ) No. 29A02-9806-CR-557 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
March 30, 1999
OPINION - FOR PUBLICATION
Madison County as charged. Thereafter a lengthy discussion ensued between the court, the
State, and defense counsel concerning proper venue. Ultimately, over Schwartz' objection
the trial court granted the State's motion to amend the child molesting charge to assert that
the offense occurred in Hamilton County. Schwartz then moved to transfer venue of the case
to Hamilton County. The motion was granted. Three days later Schwartz filed a motion for
discharge. After a hearing the trial court denied the motion. In so doing the trial court
Based on what I can see the key to this is you didn't appear for the pretrial conference. The pretrial was set for 10/16/96. On 9/9/96 motion to suppress withdrawn, trial to be set at pretrial conference. There is no entry for the 10/16 so you didn't appear at the pretrial conference. So you have waived your rights. . . . I am saying since they did not appear for the pretrial the delay is attributable to the defense.
R. at 149-50. After venue of the case was transferred to Hamilton County, Schwartz renewed
his motion for discharge. The motion was denied. This interlocutory appeal followed.See footnote
Schwartz contends the trial court erred in denying his motion for discharge. According to Schwartz he was not brought to trial within a year of his arrest or charge and the delay was not attributable to him. Under Ind. Crim. Rule 4(C) the State has an affirmative duty to bring a criminal defendant to trial within one year. Bates v. State, 520 N.E.2d 129, 131 (Ind. Ct. App. 1988), trans. denied. The one year time period commences upon the date of arrest or date of charge, whichever is later. Id. That period is extended by
any delay arising from any continuance had on the defendant's motion, by any delay caused
by the defendant's act, and by congestion of the court's calendar. Id.
In the case before us the record shows that Schwartz was charged on July 27, 1996. Barring any delays attributable to Schwartz the State was obligated to bring him to trial by July 27, 1997. On August 13, 1996, Schwartz filed a motion to suppress evidence. He withdrew the motion twenty-seven days later on September 9, 1996. This time was attributable to Schwartz. See Solomon v. State, 588 N.E.2d 1271, 1272 (Ind. Ct. App. 1992) ("A delay attributable to the defendant runs from the time the motion is filed until the judge rules on the motion."). Thus the State now had to bring Schwartz to trial by August 25, 1997. On September 3, 1997, nine days after the one year period had expired, the trial court set a trial date.
There is no question that once a trial court sets a trial date outside the one year period, the defendant must alert the court and file a timely objection. Wheeler v. State, 662 N.E.2d 192, 194 (Ind. Ct. App. 1996). Failure to do so will result in waiver of the defendant's right to discharge. Id. However "a defendant has no duty to object to the setting of a belated trial when the setting of the date occurs after the time expires such that the court cannot reset the trial date within the time allotted by Crim. R. 4(C). All the defendant needs to do then is move for discharge." Pearson v. State, 619 N.E.2d 590, 592 (Ind. Ct. App. 1993) (citation omitted). In this case Schwartz so moved but the trial court denied the motion on grounds that Schwartz' failure to appear for pretrial conference resulted in a delay attributable to Schwartz. We disagree. The record is completely silent on whether a pretrial conference
was ever held. Where the record is silent concerning the reason for a delay, the delay is not
attributable to the defendant. Solomon, supra. Further, assuming a pretrial conference was
held, and further assuming Schwartz did not appear, we fail to see why a trial date could not
have been set in his absence. The inference here is that Schwartz' absence was the cause of
the State not moving the trial court to schedule this matter for trial in a timely fashion.
Indeed the trial court noted "[t]here is no entry for a pretrial conference which means the
defense did not appear and that is how we lost track of this case." R. at 149-50. However
bringing a defendant to trial within a year is an affirmative duty of the State. "The defendant
does not have an obligation to remind the State of this duty or to remind the trial court of the
State's duty." Staples v. State, 553 N.E.2d 141, 143, (Ind. Ct. App. 1990), trans. denied; see
also Jackson v. State, 663 N.E.2d 766, 769 (Ind. 1996) ("The onus is on the State, not the
defendant, to expedite prosecution.").
The State's contention in this appeal is that Schwartz did not object to the February trial date until after the case had been transferred to Hamilton County. According to the State, by that time a jury had already been sworn. The State's argument lacks merit. First, the record is clear that Schwartz moved for discharge both before and after the case was actually transferred. Indeed the first motion for discharge was heard before the judge of the Madison Circuit Court. Be that as it may, by the time this case was scheduled for trial the one year time limit had already passed. All Schwartz had to do at that point was to move for discharge. He so moved and the motion should have been granted. We therefore reverse the judgment of the trial court and order that Schwartz be discharged.
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