*1 810 Indiana Constitution Article
Amendment and
1, during present § be his trial is 13 to knew of his trial
waivedwhere the defendant yet appear. to Adams v. State
date failed
(1987),Ind.,
812; McCaffrey
509 N.E.2d
v.
(1991),Ind.App.,
State knowing
conduct results in a waiver of the present at the defen
right to be trial because nothing "indicates
dant's deliberate absence orderly than an intention to obstruct the
less justice."
processes of Broecker v. State
(1976), 231, 886, Ind.App. N.E.2d 168 342 Likewise, right the to counsel is
888. where issue, may
at waiver result where a defen justice disrupts orderly processes of
dant the
by employ prior to refusing to counsel his Houston, at 118.
trial. 553 N.E.2d case, con- present
In the the trial court separate hearings attempt in an
ducted five counsel, encourage employ
to to Seniours attorneys
provided the names of several for contact,
Seniours to and ordered the trial
continuedin order to allowSeniours addition- At last of the al time to hire counsel. the Jr., Dawalt, Marion, appel- P. Robert for hearings, the court informed Seniours that lant. proceed the trial would on the scheduled date and that should secure counsel be- Seniours BARTEAU, Judge. ap- fore that time. Seniours nevertheless day peared on the of trial without an attor- Jennings appeals judgment Rex the of the ney. a Such conduct demonstrates deliber- trial court in favor of on Pamela Davis attempt orderly process- ate to frustrate the complaint partition. Davis's for We must es of the court and is sufficient to demon- appeal Jennings dismiss the because did not right strate waiver of the to counsel. praccipe timely in file his a manner. 2(A) Appellate Indiana Rule states: (80) praecipe thirty
"The shall be filed within days entry judgment.... after aof final praecipe Unless the is filed within such time period, right appeal the to an will be forfeit Timely filing praecipe jurisdic ed." of a is a JENNINGS, Appellant-Defendant, Rex prerequisite praecipe tional and when the has v. timely not been filed we must dismiss the DAVIS, Appellee-Plaintiff. appeal. Companies CNA Ins. v. Vellucci S. Pamela (1992), 926, 928, Ind.App., 596 N.E.2d trans. No. 35A05-9311-CV-419. Here, denied. the trial court entered the 16, judgment August Jennings final on 1998. Indiana, Appeals of of Court 16, 1998, praccipe September filed his on Fifth District. (81) thirty-one days entry after the of the May31,1994. Thus, judgment. praecipe final not the was timely appeal filed and the must be dis missed.
DISMISSED.
811 our technical justice. must examine FRIEDLANDER, J., We concurs. invoking closely appears that when it rules RUCKER, J., opinion. with dissents justice; we otherwise them would defeat to the technicalities them- slaves become RUCKER, dissenting. Judge, they position of acquire the selves and ques There is no respectfully dissent. I of the means. being the ends instead authority support exists ample that case tion timely filing of a ing the notion that the merely appellant In at hand was the case to an jurisdictional prerequisite a praecipe is filing praecipe. The day late in his one (1991), See, Ind. v. appeal. e.g., Dizon State Appellant Proceedings and Brief of Record of denied; 594, Hughes trans. App., N.E.2d 566 I timely thereafter. also observe were filed (1983), Ind.App., 452 County Morgan v. Invok- appellee did not file a brief. that the (1982), 447; Bailey Ind. v. Sullivan N.E.2d in this case defeats ing procedural a rule However, if this were App., N.E.2d 75. 432 justice. promotes the ends of rather than law, late then the actually the state of the by entertaining prejudice no one We would automatically pre praecipe would filing of a appeal. the merits of this every in instance. review appellate clude Therefore I dissent. Rather, this Clearly the case. that is not its inherent hesitated to invoke court has not appeal an
discretionary authority to entertain has though time allowed therefore
even the invoked this be sure we have
expired. To intoning mantra "this
authority only the after only in such discretion court will exercise See, e.g., CNA exceptional cases."
rare and (1992), Ind.App., 596 v. Vellucci Ins. Cos. DOUGLAS1, Mark Steven denied; 929, 926, v. trans. Costanzi N.E.2d Appellant-Defendant, 454, (1977), Ind.App. 368 N.E.2d Ryan 174 12, However, timely filing of a the 16. either v. jurisdictional prerequisite to an praccipe ais Indiana, Appellee-Plaintiff. STATE of truly jurisdic If appeal or it is not. it were tional, be un explanation further would then No. 45A05-9212-PC-439. filing praccipe of a necessary. The late Indiana, Appeals of of Court authority to court had no would mean this Fifth District. end the appeal and that would entertain an discussion. 31, May 1994. out very that we have carved The fact filing timely of a exceptions suggests that the Rath jurisdictional matter.
praccipe is not a
er, the merits of not to entertain whether or solely to untimely appeal is a matter left
an not be court. It should discretion of this
the Supreme Court observed As our
otherwise. ex rel. Ins. Co. v. State
in American States 637, 640, (1972), 283 Jennings 258 Ind. 529, 531:
N.E.2d are ex-
Although procedural rules our kept in it mind
tremely important, must be achieving merely for they a means
that are orderly speedy and of
the ultimate end Douglas, dowe as Mark changed by to the defendant Douglas his name refer 1. We note that the same here. to Shaka 20, 1992, court order on September appeal on Adiyia Because the briefs Shakur.