O'Riordan v. State , 247 Ind. 265 ( 1966 )

On Motion To Dismiss

Jackson, C. J.

Appellant was charged by affidavit with the crime of obtaining money under false pretense. Trial by jury was had resulting in such verdict, judgment was pronounced thereon and appellant was fined in the sum of One Thousand Dollars and sentenced to the Indiana State Prison for a term of not less than one nor more than seven years.

From this sentence appellant has appealed. The grounds for appellant’s motion for a new trial are:

“1. That the verdict of the Jury is contrary to law.

“2. That the verdict of the jury is not sustained by sufficient evidence.”

Appellant’s Assignment of Errors is, in pertinent part, as follows:

“1. The Court erred in overruling Appellant’s Motion For a New Trial.

“2. The Court erred in overruling Appellant’s Motion for Extension of Time Within Which to File an Amended Motion for New Trial.”

The appellee has filed a motion to dismiss the appeal or to affirm the judgment asserting therein, in substance, that appellant’s trial on the criminal charge herein was commenced on March 19, 1963, in the trial court; that on March 23, 1963, after hearing all the evidence in said cause the jury returned a verdict of guilty and directed that appellant be imprisoned for a period of not less than one nor more than seven years and be fined in the sum of One Thousand Dollars; that on Friday, March 29, 1963, after the filing of a pre-sentence investigation report, judgment was rendered by the trial judge, pursuant to the verdict of the jury.

Thereafter, on May 6, 1963, appellant filed pro se (a) a motion for appointment of counsel, (b) a motion for extension of time, and (c) a motion for a new trial; all of which motions were made forty-four (44) days after the rendition of the verdict and thirty-eight (38) days after the rendition of the judgment.

Upon the filing of appellee’s Motion to Dismiss or Affirm appellant made application to the Vigo Circuit Court for a Nunc Pro Tunc entry to be made on the Order Book of that court correcting the date of the filing of appellant’s motions for appointment of counsel, for extension of time, and for new trial corrected from May 6, 1963, to April 18, 1963.

That on May 22, 1964, said Vigo Circuit Court conducted a hearing on such motion for entry Nunc Pro Tunc and at the conclusion thereof made its order therein, in pertinent part reading as follows, “[i]t is FURTHER ORDERED that said entry be made as of the 18th day of April, 1963, nunc pro tunc.”

That on May 29, 1964, appellant filed with this Court his Application for Writ of Certiorari praying this court to order the Clerk of the Vigo Circuit Court to certify to this court a transcript of the orders and entries made nunc pro tunc as aforesaid, and all the proceedings relating thereto.

That on June 2, 1964, this court granted said petition for certiorari and the clerk of this court did issue the same to the clerk of the Vigo Circuit Court commanding him to make out and certify to this court a full and complete transcript of the records and proceedings in said cause, which were corrected by this court by nunc pro tunc entry. On July 2, 1964 such supplemental transcript was filed with the clerk of this court.

The motion to dismiss or affirm is denied.

Myers, Achor and Arterburn, JJ., concur. Landis, J., concurs in result.