ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
J.J. Paul, III Jeffrey A. Modisett
Indianapolis, Indiana Attorney General of Indiana
Suzann Weber Lupton
Deputy Attorney General
SUPREME COURT OF INDIANA
JOSEPH D. DIEDERICH, ) ) Appellant (Defendant Below ), ) 29S02-9810-CR-541 ) in the Supreme Court v. ) ) 29A02-9709-CR-608 STATE OF INDIANA, ) in the Court of Appeals ) Appellee (Plaintiff Below ). )Cause No. 29D04-9604-CM-2999
APPEAL FROM THE HAMILTON SUPERIOR COURT The Honorable J. Richard Campbell, Judge
Charges had been pending against appellant Joseph Diederich for nearly a year when the trial court set a trial some six months off. Defense counsel mailed an objection two working days later
and moved for discharge. The trial court said he had not acted
promptly enough because he had used the mail rather than fax or
hand delivery. The Court of Appeals affirmed. We grant transfer
Diederich's counsel mailed this objection to the court on
Monday, November 4th. The court clerk marked it as filed on
Wednesday, November 6th. The Attorney General calculates that the
Criminal Rule 4 period expired on November 8th.
Criminal Rule 4(C) provides that "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...."
Ruling on Diederich's motion for discharge, the trial court
held that the defendant's use of first-class mail when the one-year
period was so close to running out did not constitute objection "at
the earliest opportunity, such as by fax machine, telephone, or
hand delivery." R. at 69. A divided Court of Appeals affirmed.
Diederich v. State, No. 29A02-9709-CR-608 (Ind. Ct. App., July 24,
1998). The majority said that "Diederich could have informed the
court of his objection to the trial date in a more timely manner by
use of fax or telephone." Slip op. at 6. Judge Mattingly
dissented, noting that the defendant had "responded promptly in the
same manner by which he was served with notice of the new trial
setting." Diss. op. at 12.
We are satisfied that the defendant did object with a dispatch and in a manner adequate to enforce his rights under Criminal Rule 4. While it is true that there was very little time left to conduct a trial at the moment when Diederich tendered his objection, the real reason for the shortness of time was not the defendant's use of the U.S. Mail but the prosecutor's decision much
earlier in the game to let the matter pend in another court for 215
days before dismissing without prejudice.
Accordingly, we reverse the trial court and order the
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
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