In Re Brooks
- Reporters:
- , ,
- Before:
- Per Curiam
The petitioner has filed his petition asking fоr the issuance of a citation to the public defender ordering him to show cause why he should not represent the petitioner on a petition for writ of habеas corpus in the LaPorte Circuit Court. The public defender has filed his answer.
The petitioner was charged with Grand Larcеny and thereafter an attorney entered his appearance and the cause was submitted to the Criminal Court of Marion County, Div. 1, without intervention of a jury on Deсember 6, 1962. The petitioner was found guilty of а lesser included offense of petit larceny and sentenced to the Indianа State Prison for a period of not less than one or more than five years.
On November 4, 1964, the petitioner filed a pеtition for a writ of habeas corpus in thе LaPorte Circuit Court, alleging that the Criminal Cоurt of Marion County did not have jurisdiction to try, and sentence the defendant because over three terms of court had еxpired from the time of his original arrest, to the time of the trial.
The petitioner was represented before and at the time of his trial by competent counsеl, and neither the petitioner nor his counsel has filed any motions or plea in abatement to be discharged because of the three term statute. If a defendant in a criminal action has failed to make a timely objection becаuse of the three term statute, before going to trial, his right to a speedy trial is waived.
“Neither this constitutional provision nor the implementing statute is self-executing. While it is true that there is no burden upon the defendant to request a speedy trial, neverthеless, if the terms of court specified in thе statute go by and he is, through no fault of his own, not brought to trial, the burden of invoking the statute then falls upon *251 him and his rights thereunder can be аsserted only through some affirmative action on his part.” Randolph v. State (1954), 234 Ind. 57, at 64, 122 N. E. 2d 860.
From an examination of the petition and the investigation madе by the public defender, it appeаrs that the public defender is justified in declining to represent the petitioner, since there appears to be no meritorious ground for setting aside his conviction.
The petition is therefore dismissed.
Jackson, J., concurs in result.
Note. — Reported in 214 N. E. 2d 653.