Frisbie v. State

DARDEN, Judge,

dissenting.

I respectfully dissent. I first note two facts, not discussed in the majority opinion and which I find particularly troublesome: Frisbie was charged on December 15, 1994, but the next day the trial court scheduled his arraignment nearly three months hence — on March 7,1995; and Frisbie’s written request for a jury trial appears to have been simply ignored and the matter set for bench trial. These facts aside, I cannot agree with the majority’s conclusion that Frisbie’s motion for discharge was properly denied.

Our supreme court described the 1881 statutory predecessor to Ind.Crim. Rule 4(C) as “a limitation upon the right of the state to hold a person by recognizance to answer a criminal charge.” Zehrlaut v. State, 230 Ind. 175, 102 N.E.2d 203, 207 (1951). Citing Art. 1, § 12 of Indiana’s Constitution, which directs that justice be administered “speedily, and without delay,” id., 102 N.E.2d at 206 (italics in original), the court found the provision to “east no burden upon the defendant” but rather to “cast an imperative duty upon the state and its officers, the trial courts and prosecuting attorneys, to see that a defendant held on recognizance is brought to trial.” Id. at 207. The court continued -as follows:

It is not a fault of the defendant if he remain silent while under recognizance, on the contrary, that is his right. He is not required to make any demand of the state or the court for a speedy trial. That demand is effectively made for him by the constitution and [the instant] implementing statute, and this demand thus made the state may not ignore without incurring the penalty [of discharge] provided by the statute.

Id., 102 N.E.2d at 207. The vitality of Zehrlaut was affirmed in Huffman v. State, 502 N.E.2d 906 (Ind.1987).

The majority labels as dictum the following statement in State ex rel. O’Donnell v. Cass Superior Court, 468 N.E.2d 209, 211 (Ind.1984):

When a defendant has agreed to a continuance prior to the setting of any trial date, those days shall not be attributed to the defendant for the purposes of Ind. R. Cr. P. 4(C).

In O’Donnell, the State had argued that “when a defendant has either agreed to a State sought continuance or by his actions has acquiesced to a continuance then the delay is chargeable to the defendant.” Id. at 210. Therefore, I read the quoted statement as directly responding to this argument of the State and consequently not constituting dictum.

The majority further cites Morrison v. State, 555 N.E.2d 458, 461 (Ind.1990), for our supreme court having found that the delay prior to a trial setting was properly charged to a defendant who had conceded accountability for that time period. However, during the initial time period for which Morrison had conceded accountability, a trial date comporting with Crim.R. 4 had been set by the court. Therefore, I cannot agree that the single cited portion of the serial analysis discussing Morrison’s complex chronology may alone sustain the majority’s conclusion.

Because a matter which has not been set for trial within one year cannot be tried within one year, I believe that the Indiana Constitution and Crim.R. 4(C) obligate the trial court to set a trial date within one year. See Zehrlaut. The accused has no duty to make sure that a trial court does so. Id. The record reveals that at various times within that one year period, the Frisbie matter was set for “MDC,” “OH7MDC,” or “PTC,” and Frisbie requested a continuance. Requesting a continuance for any of these would not constitute requesting a continuance of a trial date. Requests for a continuance “are only charged against the defendant, thereby increasing the amount of time the State has to bring him to trial, if a trial date is set when the request is made.” Nance v. State, 630 N.E.2d 218, 220 (Ind.Ct.App.1994) (citing Solomon v. State, 588 N.E.2d 1271, 1271 (Ind.Ct.App.1992)). Therefore, I find the majority’s discussion of delays chargeable to Frisbie inapposite.¹ The trial court did not set a trial date (of March 19,1997) until July ■11, 1996, more than eighteen months after charges were filed against Frisbie. Accordingly, I would reverse the order denying discharge.

1 . Moreover, the majority states that “two of the continuances were sought because Frisbie changed lawyers.” The record reveals that on two occasions when a continuance was sought by Frisbie’s counsel, a different name appeared for Frisbie’s counsel than on prior entries. However, the record does not indicate the reason that either continuance was requested. Therefore, I do not believe we can properly conclude that these continuances were sought because Frisbie changed lawyers.