ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KURT BENTLEY GRIMM JEFFREY A. MODISETT
Grimm & Grimm Attorney General of Indiana
RANDI E. FROUG
Deputy Attorney General
KEVIN HASTON, ) ) Appellant-Defendant, ) ) vs. ) No. 44A03-9712-CR-409 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
instances where the one-year time limit is tolled. For example, where a delay in proceeding
to trial is caused by a defendant or a defendant acquiesces in any delay, that time is
chargeable to the defendant and does not count against the one year time limit. Crim. R.
4(C); Ferguson v. State, 594 N.E.2d 790, 792 (Ind. 1992). This general rule has been
applied where the defendant has sought an interlocutory appeal, see Vance v. State, 620
N.E.2d 687, 689 (Ind. 1993); Covelli v. State, 579 N.E.2d 466, 470 (Ind. Ct. App. 1991),
trans. denied, and where the defendant's actions have caused the State to seek an
interlocutory appeal. State ex rel. Cox v. Superior Court of Madison County, 445 N.E.2d
1367 (Ind. 1983).
However, Vance, Covelli and Cox charge the defendant with the time from initially seeking an interlocutory appeal to the date an appellate decision is issued. In this case, Haston never perfected his appeal. Haston had thirty days from the certification order from the trial court within which to petition this court to entertain jurisdiction, but did not do so.See footnote 1 Ind. Appellate Rule 2(A). Failure to timely perfect an interlocutory appeal results in forfeiture of the opportunity to pursue the appeal. See Bowyer v. Vollmar, 505 N.E.2d 162, 165-67 (Ind. Ct. App. 1987); Stark County v. Bass Lake Property Owners Assoc., 159 Ind.App. 213, 305 N.E.2d 900 (1974). Although the above cases did not discuss 4(B)(6) interlocutory appeals, we can discern no legitimate reason their rationale should not also
apply to permissive interlocutory appeals. Thus, strictly speaking, the only time chargeable
to Haston would be the time from when the trial court certified the suppression issue for
interlocutory appeal until the date Haston's opportunity to seek appellate review expired by
operation of law: in this case, thirty days.
The State insists that it was Haston's act that set into motion a chain of events causing the delay, thereby justifying attributing the entire delay to Haston. A defendant is charged with any delay caused by his actions. Wheeler v. State, 662 N.E.2d 192, 193 (Ind. Ct. App. 1996). "However, when determining the extent of the delay caused by the defendant's actions, we must proceed on a case-by-case basis." Id. at 194 (emphasis added). Even were we to grant the State some "equitable time" for its detrimental reliance on Haston's representation that he intended to seek an interlocutory appeal, we conclude that this additional time falls woefully short of the approximately two and one-half years required to comply with Crim. R. 4(C) in this case.See footnote 2
Finally, noting that Haston moved for discharge the day before trial, the State
contends that Haston acquiesced in the new trial date since he did not move for discharge
However, courts have found defendants entitled to discharge under circumstances
similar to this case when the defendant made the motion on the day before trial, Morrison v.
State, 555 N.E.2d 458, 463 (Ind. 1990), or even on the day of trial, Nance v. State, 630
N.E.2d 218, 221 (Ind. Ct. App. 1994). Accordingly, we conclude Haston timely moved for
discharge the day before trial and that the trial court erred by not granting Haston's motion.
HOFFMAN, J., and RUCKER, J., concur.
on the petition to the local prosecutor would also be helpful. Ind. Appellate Rule 2(B) allows this court to
"order such additional notice to the parties as justice may require," and is a rule which will permit this court
to keep local prosecutors informed as to the status of petitions for interlocutory appeal actually filed. In this
manner, prosecutors would then be assured that the Attorney General is handling the case until an appellate
decision is rendered.
In the interim, some coordination between the Attorney General's office and local prosecutors' offices is required. Too, local prosecutors can call the Clerk of the Court of Appeals ((317) 232-1930) thirty days after an issue is certified for interlocutory appeal to investigate whether a criminal defendant did in fact petition this court to accept jurisdiction. If no petition has been filed, the prosecutor will know the time for the defendant to avail himself of an interlocutory appeal has expired and the prosecutor can proceed to trial accordingly.
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