Cassidy v. State

Dec 22, 1993
No. 49A05-9209-CR-306
Reporters:
, ,
Before:
Barteau
BARTEAU, Judge.

Ronna Cassidy appeals her conviction of dealing in cocaine, a Class A felony. She raises two issues for our ‍​‌‌‌​‌​‌‌​‌​‌​‌​‌​‌‌​​‌‌​‌‌​‌​‌​‌‌‌​‌‌​​‌​​‌‌​‌‌​​​​‌​​‌‌‌​‌​​​​​​​​​​​‌‌​​​​​​​​​‌‌‌‌​‌​‌​​​​‌​‍review, but we conclude that the appeal must be dismissed.

David Cook, a properly appointed judge pro tempore, presided over Cassidy’s trial on December 30 and 31, 1991. Cook also sentenced Cassidy on January 24, 1992. However, on the ‍​‌‌‌​‌​‌‌​‌​‌​‌​‌​‌‌​​‌‌​‌‌​‌​‌​‌‌‌​‌‌​​‌​​‌‌​‌‌​​​​‌​​‌‌‌​‌​​​​​​​​​​​‌‌​​​​​​​​​‌‌‌‌​‌​‌​​​​‌​‍day of sentencing, Cook had not been appointed judge pro tempore. Only a judge or magistrate may enter an appealable final judgment. Boushehry v. State (1993), 626 N.E.2d 497 (opinion on rehearing). A judge is either the duly elected or appointed judge ‍​‌‌‌​‌​‌‌​‌​‌​‌​‌​‌‌​​‌‌​‌‌​‌​‌​‌‌‌​‌‌​​‌​​‌‌​‌‌​​​​‌​​‌‌‌​‌​​​​​​​​​​​‌‌​​​​​​​​​‌‌‌‌​‌​‌​​​​‌​‍of the court, or a duly appointed judge pro tempore or special judge. Id. Because Cook was not a properly appointed judge pro tempore on the day he sentenced Cassidy, we do not have a final appealable judgment to review.

For ‍​‌‌‌​‌​‌‌​‌​‌​‌​‌​‌‌​​‌‌​‌‌​‌​‌​‌‌‌​‌‌​​‌​​‌‌​‌‌​​​​‌​​‌‌‌​‌​​​​​​​​​​​‌‌​​​​​​​​​‌‌‌‌​‌​‌​​​​‌​‍the reasons discussed at length in Boushehry, we dismiss this appeal. We stress that we are not holding that the conviction is invalid — Cook was properly appointed as judge pro tempore when he entered the conviction. We are merely ‍​‌‌‌​‌​‌‌​‌​‌​‌​‌​‌‌​​‌‌​‌‌​‌​‌​‌‌‌​‌‌​​‌​​‌‌​‌‌​​​​‌​​‌‌‌​‌​​​​​​​​​​​‌‌​​​​​​​​​‌‌‌‌​‌​‌​​​​‌​‍holding that at this point the sentencing judgment is not a valid, final judgment.

APPEAL DISMISSED.

RUCKER and ROBERTSON, JJ., concur.