Bentley v. State , 1984 Ind. LEXIS 789 ( 1984 )

GIYAN, Chief Judge.

Appellant was convicted by a jury of Second Degree Murder, Conspiracy to Commit Armed Robbery and Armed Robbery. His convictions were affirmed by this Court in Bentley v. State, (1981) Ind., 414 N.E.2d 573. Appellant filed a Petition for Post-Conviction Relief which was denied.

Appellant maintains one issue in this appeal, a denial of effective assistance of counsel. This allegation is based upon counsel’s failure to provide for appellant’s discharge pursuant to Ind.R.Cr.P. 4(C). Appellant argues the State failed to bring him to trial within the one year limitation imposed by the rule. Appellant asserts this failure to seek discharge is a demonstration of ineffective counsel which should result in reversal.

The facts are these. The offenses alleged occurred on April 7,1975. The appellant left the State immediately following the incident. Appellant went to Tennessee where he was arrested on an unrelated matter and spent one year in jail. When he was released, he returned to Indiana where he was arrested on yet another matter. On June 15, 1977, while in court on this unrelated matter, appellant was arrested for the instant crimes. The charges for the instant crimes were dismissed July 7, 1977, on State’s Motion to Dismiss due to the unavailability of a key witness. Appellant again left the State and did not return until the spring of 1978. He was again arrested and charged with the instant crimes. This last arrest took place June 10, 1978. Following procedural delays, most of which were attributable to appellant, this matter finally went to trial on March 12, 1979.

Appellant relies on State ex rel. Back v. Starke Circuit Court, (1979) 271 Ind. 82, 390 N.E.2d 643 to support his contention. In Back we held that when an identical charge is refiled, it must be regarded as if there had been no dismissal of the first affidavit, or as if the second affidavit were filed on the same date as the first. Appellant thus contends the State had until June 15, 1978, to bring him to trial. The failure to do so prior to that date, he argues, should cause Ind.R.Cr.P. 4(C) to operate in his behalf.

The statement in Back was based upon an earlier holding in State ex rel. Hasch v. Johnson Circuit Court, (1955) 234 Ind. 429, 127 N.E.2d 600. In Hasch Judge Achor said:

“The obvious purpose and character of the statute (§ 9-1403) upon which the motion to dismiss is based requires that in event the identical charge is refiled, it must be regarded as if there had been no dismissal of the first affidavit, or as if the second affidavit had been filed on the date of the first. Brooks et al. v. The People (1878), 88 Ill. 327; State v. Crawford (1919), 83 W.Va. 556, 98 N.E. 615. The only exception might be as to the intervening period between the dismissal and refiling of the charge — a question which we are not called upon to decide.” Id. at 435, 127 N.E.2d at 603.

When one examines the rule, it is easy to discern why Judge Achor used the cautionary language above quoted. Indiana Rules of Criminal Procedure, Rule 4(C) states in part: “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; .... ” It is obvious that when a criminal charge is dismissed, the person is not then being held “to answer a criminal charge.” There is no question but what Judge Achor in the Hasch case was simply stating that the State should be charged with all the time the defendant stood charged, starting with the charge or arrest in the first instance.

The clear import then is that if a defendant is arrested and charged, and held to answer to that charge for a period of one month, then is discharged, and at a subsequent time the State refiles the same charge, the State is charged with the one month he was held to answer in the first instance and that month’s time is added to the time following the second arrest under which the State holds the defendant “to answer a criminal charge.”

We therefore hold that State ex rel. Back v. Starke Circuit Court, supra, misconstrues State ex rel. Hasch v. Johnson Circuit Court, supra, and that the interpretation of the rule in State ex rel. Back places an undue burden upon the State.

Had counsel offered the Motion for Discharge, the motion should have failed. Therefore we will not find trial counsel incompetent for failure to offer the motion. Appellant has not demonstrated that trial counsel was ineffective.

The trial court is affirmed.

DeBRULER and PIVARNIK, JJ., concur. HUNTER, J., dissents with separate opinion. PRENTICE, J., concurs in result with separate opinion.