Robison v. State , 172 Ind. App. 205 ( 1977 )

359 N.E.2d 924 (1977)

Ronald Kay ROBISON, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee.

No. 3-1275A292.

Court of Appeals of Indiana, Third District.

February 16, 1977.

Timothy J. Connor, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Charles W. Vincent, Deputy Atty. Gen., Indianapolis, for appellee.

GARRARD, Judge.

The appellant was charged with theft and was tried by the court. At the conclusion of the trial the court made the following entry,

"Finding of guilty as charged and judgment is now by the court withheld."

We are aware of the practice of some trial courts in utilizing this form of entry in certain cases. However, it is not authorized by statute or rule. See, e.g., Indiana Rules of Procedure, Criminal Rule 11; IC 1971, 35-8-1A-1, 2.

A defendant may, if he chooses, compel the court to discharge its duty to promptly pronounce judgment and sentence. Taylor v. State (1976), Ind. App., 358 N.E.2d 167.

Where the court deliberately postpones indefinitely the pronouncement of judgment and sentence, the court loses jurisdiction to sentence and upon application the defendant should be discharged. Warner v. State (1924), 194 Ind. 426, 143 N.E. 288; Smith v. State (1919), 188 Ind. 64, 121 N.E. 829; Taylor, supra.

However, a "judgment withheld" entry is neither a final judgment nor an appealable interlocutory order. AP 4(B). It is therefore not appealable. Clanton v. State (1974), Ind. App., 308 N.E.2d 726; Spall v. State (1973), Ind. App., 295 N.E.2d 852.

Accordingly, this appeal is dismissed.

STANTON, P.J., and HOFFMAN, J., concur.