DocketNumber: No. 2-473A99
Citation Numbers: 158 Ind. App. 546, 1973 Ind. App. LEXIS 946, 303 N.E.2d 284
Filed Date: 11/20/1973
Status: Precedential
Modified Date: 10/18/2024
On Petition to Reconsider Denial of Petition for Leave to Refer to Record in Former Case
This is an appeal by Gary Casterlow from a judgment denying his petition for post conviction relief. He is represented by the Public Defender of the State of Indiana who, on August 2, 1973, filed in his behalf the following petition:
“Comes now Harriette Bailey Conn, Public Defender of Indiana, and attorney for Gary Casterlow, and would show the Court that:
“(1) Petitioner was tried and convicted of the crime of Robbery and was sentenced to an indeterminant term of ten [10] to twenty-five [25] years, corrected July 30, 1969, to an indeterminate sentence of not less than ten [10] nor more than twenty [20] years;
“(2) Petitioner appealed to the Supreme Court of Indiana under cause number 1169 S 274, finally affirmed May 17, 1971;
“(3) Thereafter, Petitioner’s Petition for Post-Conviction Relief, filed August 28, 1972, was denied November 27,1972;
“(4) Petitioner’s Motion to Correct Errors from denial of his Petition for Post-Conviction Relief was filed January 19,1973, and overruled on the same date.
“ (5) The Record of Proceedings was filed April 19, 1973, with the Clerk of the Court of Appeals of Indiana, although a determination of all of the issues of his Petition for Post-Conviction Relief would be facilitated by reference to the record of prior proceedings.
“WHEREFORE, Petitioner prays for leave to refer to the Record earlier filed under cause number 1169 S 274 ”
In LeFlore v. State (1973), 157 Ind. App. 291, 299 N.E.2d 871, 874, 38 Ind. Dec. 43, 47, in an opinion handed down only a few days before we denied, in this case, the petition to refer to the record of the direct appeal to the Supreme Court, we noted that we had “improvidently” granted such a petition in that case.
“Our granting of that petition, [we said], has been treated as having caused the evidence at the criminal trial to become a part of the evidence at the post conviction relief hearing. The net result is that this appeal is little more than an attempted second direct appeal of the criminal case. . . . The State, however, has failed to argue waiver and has elected to argue the merits of the issues petitioner-appellant contends are presented by this appeal. Apparently, Langley, supra, 267 N.E.2d at 542, 25 Ind. Dec. at 124 requires us to do likewise.”
Whether we correctly or incorrectly assessed the effect of granting the petition in LeFlore, we feel obliged to take care that no ruling in this case will deter the State from its duty to assert every available defense tending to confine post conviction relief proceedings to their intended purpose as
The appellant’s motion to reconsider is denied.
Note.—Reported in 303 N.E.2d 284.
. Prior to January 1, 1972, the Indiana Supreme Court had exclusive jurisdiction of appeals in all criminal cases and all post conviction relief cases. Ind. Ann. Stat. § 4-214, Cl. 2, (Burns 1968 Repl.) repealed by Acts 1971, P.L. 427, eff. January 1, 1972. Post-Conviction Remedy Rule 1. Since December 31, 1971, the Court of Appeals has jurisdiction of appeals in criminal cases wherein the minimum sentence is not greater than ten years and from denial of post-conviction relief involving like sentences. Appellate Rule 4(A) (7) and 4(B).
. State ex rel. Minton v. Parke Circuit Court (1948), 226 Ind. 55; Peoples State Bank of Crown Point v. Bankers Trust Co. of Gary (1936), 102 Ind. App. 647, 4 N.E.2d 674; State ex rel. Department of Financial Institutions of Indiana v. Topf’s Estate (1938), 105 Ind. App. 530, 13 N.E.2d 883; State ex rel. Miller v. Kroger (1956), 235 Ind. 556, 135 N.E.2d 520; State ex rel. Miller v. Kroger (1957), 236 Ind. 190, 139 N.E.2d 170.
. See 256 Ind. at 203, 267 N.E.2d at 540, 25 Ind. Dec. at 121