Attorney for Appellant
Attorneys for Appellee
Jeffrey A. Baldwin Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Justin F. Roebel
Deputy Attorney General of Indiana
Interlocutory Appeal from the Henry Circuit Court, No. 33C01-0112-CF-038
The Honorable Mary G. Willis, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 33A01-0302-CR-00075
June 30, 2004
There is conflicting authority as to whether, prior to any trial date being
set, delays caused by a defendant extend the one-year deadline for bringing a
defendant to trial under Indiana Criminal Rule 4(C). We hold that they
Relevant to Defendants claim are these two facts:
(1) Between February 14, 2002, and June 28, 2002, Defendant made five motions to continue, and on three occasions between July 22, 2002, and September 20, 2002, the court postponed, the proceedings.
(2) No trial date had ever been set as of the time Defendant made
his motion to dismiss on December 26, 2002.
The trial court denied his motion. Defendant filed an interlocutory appeal with the Court of Appeals, which affirmed the trial court, although it attributed 105 days of delay to Defendant. Cook v. State, 799 N.E.2d 79, 83 (Ind. Ct. App. 2003). Neither court found the fact that no trial date had been set to be controlling. However, Judge Sullivan dissented from the opinion of the Court of Appeals on the ground that a request for a continuance should be charged against a defendant only if a trial date has already been set when that request is made. Id. (Sullivan, J., dissenting). We now grant transfer and affirm.
No person shall be held on recognizance or otherwise to answer a criminal
charge for a period in aggregate embracing more than one year from the
date the criminal charge against such defendant is filed, or from the date
of his arrest on such charge, whichever is later; except where a continuance
was had on his motion, or the delay was caused by his act,
or where there was not sufficient time to try him during such period
because of congestion of the court calendar . . . .
Ind. Crim. Rule 4(C). The rule places an affirmative duty on the State to bring a defendant to trial within one year of being charged or arrested, but allows for extensions of that time for various reasons. Ritchison v. State, 708 N.E.2d 604, 606 (Ind. Ct. App. 1999), trans. denied, 726 N.E.2d 300 (Ind. 1999). For instance, [i]f a delay is caused by the defendants own motion or action, the one-year time limit is extended accordingly. Frisbie v. State, 687 N.E.2d 1215, 1217 (Ind. Ct. App. 1997) (citation omitted), trans. denied, 698 N.E.2d 1190 (Ind. 1998); see also Andrews v. State, 441 N.E.2d 194, 199 (Ind. 1982).
There is disagreement as to whether a defendant causes a delay of the
trial date when the defendants actions result in a postponement of the proceedings
before a trial date is set. In State ex rel. ODonnell v.
Cass Superior Court, where the defendant agreed to a continuance sought by the
State, we held that the defendants charges should be dismissed because he was
not brought to trial within one year of being charged. 468 N.E.2d
209, 211 (Ind. 1984). In the opinion, we stated, When a defendant
has agreed to a continuance prior to the setting of any trial date,
those days shall not be attributed to the defendant for the purposes of
Ind.R.Cr.P. 4(C). Id. Our rationale was apparently that until a trial
date has been set, a defendant does not know whether the motion will
delay the trial date. A defendant in that situation can only assume
that when a trial date is finally set it will conform to the
limitations of the rule. Id. Justice DeBruler dissented, arguing, When a
party delays a task which must be completed before a trial can take
place, that party can and often does delay the setting of the case
for trial, and through that, the trial itself. That is the effect
of a continuance of the cause by agreement of the parties. Id.
Subsequent cases purport to follow the ODonnell majority. These decisions have held that any delay, regardless of who requested it, cannot be charged to the defendant unless a trial date had already been set. State v. Hurst, 688 N.E.2d 402, 406-08 (Ind. 1997); Carr v. State, 790 N.E.2d 599, 602-06 (Ind. Ct. App. 2003); Nance v. State, 630 N.E.2d 218, 220-21 (Ind. Ct. App. 1994); Harrington v. State, 588 N.E.2d 509, 511 (Ind. Ct. App. 1992); Miller v. State, 570 N.E.2d 943, 945 (Ind. Ct. App. 1991); see also Solomon v. State, 588 N.E.2d 1271, 1272 (Ind. Ct. App. 1992) (holding that the delay between the time the court granted the parties joint motion to continue the trial date and the time the court reset the trial date was not chargeable to defendant and treating it as an agreed-to continuance under ODonnell).
Some cases have disagreed with or questioned this view. Judge Hoffman, concurring
in result in Miller, noted that [n]either Criminal Rule 4(C) nor Criminal Rule
4(F), allowing extension of the Rule 4 time periods, distinguishes between continuances requested
or agreed to by the defendant before or after a trial date has
been set. 570 N.E.2d at 946. He also stated that the
language in ODonnell . . . . should be viewed as inadvertent or
aberrational. Id. at 947. In Frisbie, the Court of Appeals rejected
the defendants argument that delays made by him could not be charged to
him before the trial date had been set and stated that [a] careful
review of the language of [ODonnell and Morrison v. State, 555 N.E.2d 458,
461 (Ind. 1990)] discloses that neither supports a conclusion that the defendant may
request continuances without accountability. 687 N.E.2d at 1217.
We agree with the line of cases that hold when a defendant takes action which delays the proceeding, that time is chargeable to the defendant and extends the one-year time limit, regardless of whether a trial date has been set at the time or not. The cases since ODonnell have taken one sentence in the opinion and have stretched it to such a degree that it removes the accountability of defendants. We believe that ODonnell, properly read, refers only to continuances that a defendant agrees to and not continuances that the defendant requests. Miller was one of the first cases See footnote to hold that continuances that a defendant requests are not chargeable to a defendant unless a trial date has been set. 570 N.E.2d at 945 (For Criminal Rule 4(C) purposes, a defendant is not charged with a continuance for which he moves or to which he agrees before a trial date is set.). And the overwhelming majority of cases following that statement of the law have focused on facts other than the request having been made before a trial date was set. See Harrington, 588 N.E.2d at 511 (holding that the delay could not be attributed to defendant even though he made the motion to continue because the reason for the motion was a conflict of the prosecutors and stating as an additional reason the fact that the trial date had not been set when the motion to continue was made); Nance, 630 N.E.2d at 220 (relying incorrectly on Solomon in stating that continuances a defendant requests before a trial date is set are not attributable to defendant); Hurst, 688 N.E.2d at 407-08 (holding defendant was not chargeable with a 363-day delay between the time he made a motion to dismiss and the time the court ruled on it, and stating that the defendant had a reasonable expectation that the motion would be ruled on in due course and that, if it came to trial, he would be tried within the correct time limit). Only one case, Carr, rested its holding solely on the fact that defendants continuances were requested before a trial date had been set. 790 N.E.2d at 602-06.
The rule itself makes no distinction regarding when the trial date is set.
It provides that the time a trial date is postponed is not
charged to the State where a continuance was had on [defendants] motion, or
the delay was caused by [defendants] act. Crim. R. 4(C). And
any action that postpones the proceeding of the case will likely cause a
delay in the trial date. As Justice DeBruler stated in dissent in
ODonnell, When a party delays a task which must be completed before a
trial can take place, that party can and often does delay the setting
of the case for trial, and through that, the trial itself. 468
N.E.2d at 211.
We therefore hold that delays caused by action taken by the defendant are
chargeable to the defendant regardless of whether a trial date has been set.
To the extent inconsistent with this holding, Hurst, 688 N.E.2d 402; and
Morrison, 555 N.E.2d 458, are overruled; and Carr, 790 N.E.2d 599; Nance, 630
N.E.2d 218; Solomon, 588 N.E.2d 1271; Harrington, 588 N.E.2d 509; and Miller, 570
N.E.2d 943, are disapproved.
Defendant made five motions to continue,See footnote all of which are attributable to Defendant.
Two of those continuances were because defense counsel had a scheduling conflict
and defense counsel was out of the country. These are chargeable to
the defendant, because the action of a defendants counsel is considered the action
of the defendant.
See Andrews, 441 N.E.2d at 199; Epps v. State,
244 Ind. 515, 523-24, 192 N.E.2d 459, 463-64 (1963). The five motions
brought by Defendant caused a total of 103 days delay, and so the
one-year limit is extended by this number of days. Accordingly, Defendants trial
date must have been set for no later than March 22, 2003.
The trial date was set for March 3, 2003, which was well within
the time limit. Defendants right under Criminal Rule 4(C) to be brought
to trial within one year of being charged was not violated.