Clark v. State

OPINION

RUCKER, Judge.

In this interlocutory appeal, Defendant, Appellant Stephen Leo Clark challenges the trial court's denial of his motion for discharge. He phrases the issue as follows: whether the trial court violated Stephen Clark's right to a speedy trial.

We affirm.

The facts reveal that on October 26, 1992, Clark was charged with Auto Theft, a Class D felony.¹ At an initial hearing on October 29, 1992, Clark orally requested a speedy trial pursuant to Crim.R. 4(B)(1)² The trial court requested a written motion for a speedy trial, but nonetheless set the trial for January 7, 1998, seventy days from the October 29 oral motion. On January 7, 1998, the trial court continued the trial until May 20, 1993, "[dJlue to congestion of Court's calendar." Record at 12. On March 29, 1993, Clark filed his motion for discharge and dismissal of the information alleging that the delay was not due to court congestion and thus dismissal was proper because he was not tried within seventy days. During the hearing on Clark's motion, the court bailiff testified that no jurors were called for service on January 7, 1998, and no jury trial was held that day. Clark's motion for discharge was denied and this interlocutory appeal ensued in due course.

Clark complains that his right to a speedy trial was violated when the trial court continued the trial beyond the seventy-day period mandated by Crim.R. 4(B)(1). Clark acknowledges that a trial may be continued on the court's own motion due to a congested court calendar but argues that he carried his burden of demonstrating that the calendar was not in fact congested.

The State first responds by contending that Clark's oral motion was insufficient to preserve his right to a speedy trial. According to the State a speedy trial motion must be presented to the trial court in writing. In McGowan v. State (1992), Ind., 599 N.E.2d 589, our supreme court noted that although Crim.R. 4 does not specify that a speedy trial motion must be in writing, Ind. Trial Rule 7(B) provides in essence and in part that made during a hearing, or trial or otherwise ordered by the court, an application to the court for an order shall be made by written motion." Id. at 591. Thus, Defendant McGowan's oral motion would have been sufficient except the trial judge instructed the defendant to make the motion in writing. McGowan's written motion was made after his oral motion and thus for purposes of time computation the later date prevailed. Id. at 591 citing Minneman v. State (1982), Ind., 441 N.E.2d 6738, cert. denied, 461 U.S. 933, 108 S.Ct. 2099, 77 L.Ed.2d 307 (when a defendant files a subsequent motion, the time begins to run from the subsequent motion).

In this case the State seems to suggest that because the trial court directed Clark to file a written motion for speedy trial which Clark failed to do, then his speedy trial rights were never properly asserted and thus Clark's motion for discharge was premature. We disagree. Unlike McGowan, here the trial court accepted the defendant's oral motion for speedy trial and scheduled a trial within seventy (70) days of the date on which the oral motion was made. Although the trial court directed Clark to file a written motion, the trial court admirably scheduled a trial without waiting for the written motion. Clark's oral motion was sufficient to preserve his right to a speedy trial.

Turning now to the merits of Clark's complaint, the law is well-settled that a trial court may on its own motion schedule a trial for a date beyond the seventy-day period, when the congested nature of its calendar precludes a trial date within the early trial period. Gillie v. State (1984), Ind., 465 N.E.2d 1380, 1386; Jordan v. State (1982), Ind., 435 N.E.2d 257, 258; Gill v. State (1977), 267 Ind. 160, 164, 368 N.E.2d 1159, 1162. As our supreme court noted in Loyd v. State (1980), 272 Ind. 404, 408, 398 N.E.2d 1260, 1265, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 LEd.2d 105 "[the court calendar may be congested by a variety of cireum-stances ... We hold that any exigent cireum-stances may warrant a reasonable delay be-youd the limitations of Ind.R.Crim.P. 4 ..."

In the case before us Clark infers that because no jury trial was actually held on January 7, 1993, then the court's calendar was not congested. Clearly the law is to the contrary. The court's calendar may be congested for a variety of reasons. Here, the defendant's own exhibit, a summary of the court's calendar for January 7, sets forth nineteen (19) separate matters that were scheduled to proceed on that date. Clark does not contend and the record is silent concerning whether the trial court disposed of those cases on the date in question, whether the matters had been pending as long as Clark's, or whether the matters had lesser speedy trial concerns. In any event, we agree with Judge Barteau's observations in Bridwell v. State (Ind.App. 5th Dist., 1994), 640 N.E.2d 437, that "[albsent an allegation that the court congestion continuance was merely subterfuge, we accept the court's affirmation of congestion. The exact nature of that congestion is immaterial." 640 N.E.2d at 489 declining to follow Raber v. State (1993), Ind.App., 622 N.E.2d 541 (requiring trial court to document the nature of the congestion).

Clark further asserts that even if the trial court's calendar was indeed congested, a 133-day delay was unreasonable. The reasonableness of a delay must be judged in the context of the particular case, and the decision of the trial judge will not be disturbed absent an abuse of discretion. Loyd, 398 N.E.2d at 1265. Here, the trial judge continued Clark's case due to a congested calendar and scheduled a trial at the next available date. Clark has shown no abuse and we find none. The motion for discharge was properly denied.

Judgment affirmed.

BARTEAU, J., concurs. NAJAM, J., dissents with separate opinion.

1 . Ind.Code § 35-43-4-2.5.

2 . The rule provides:

If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during seventy (70) calendar days because of the congestion of the court calendar. Provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as set forth in subdivision (A) of this rule. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time.