Little v. StateLittle v. State
- Reporters:
- ,
- Before:
- Hunter
The defendant, David M. Little, was convicted by a jury of burglary, a class B felony,
Two issues are presented for review in this direct appeal:
1. Whether the trial court erred in denying defendant’s motion for discharge pursuant to
2. Whether the trial court erred in giving certain instructions.
The evidence most favorable to the state reveals that in the early morning hours of July 3, 1978, defendant forcibly entered the home of Ralph and Opal Garner and took several items of property, including jewelry, coins, and a gun.
I.
“Defendant discharged. No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Any defendant so held shall, on motion, be discharged.”
On July 19, 1978, the information for burglary was filed. Defendant was arrested on July 30, 1978. Under the rule, the one-year period on the burglary charge would run from the later of these dates, July 30, 1978. Therefore, defendant should have been tried for burglary no later than July 30, 1979.
On August 4, 1978, defendant was charged with theft and being an habitual offender. Since this date is later than the date for his arrest, the one year on these charges would commence on August 4,1978. Accordingly, defendant should have been tried here no later than August 4, 1979.
Because of delays attributable to both parties, two trial dates set for February 9, 1979, and May 30, 1979, were canceled and trial was reset for July 20, 1979. For reasons not disclosed by the record, there was no trial on that date and defendant was not tried on all counts until January 17 and 18, 1980, at which time he made his motion for discharge.
When there are delays caused by defendant’s acts, the time limitations specified in
The total period of delays attributable to defendant amount to fifty-six days, thus extending the July 30, 1979 expiration date to September 24, 1979, and the August 4, 1979 expiration date to September 29,1979. On August 10, 1979, the trial court set a pretrial conference for October 3, 1979, which was beyond the time limits of
It is well settled that a defendant is not required to take affirmative action to obtain a trial date within the period set by
II.
Defendant next contends that final instructions numbers two and five given in the habitual offender phase of the trial were erroneous. Instruction number two informed the jury of the state’s right to charge defendant as an habitual criminal, but did not disclose the penalty to be assessed in case the jury returned a guilty verdict. Instruction number five told the jury:
“You are not to take into consideration any penalty that may attach as a result of your decision. You are only to determine if the defendant is, or is not, an habitual offender.”
Defendant complains that not informing the jury of the potential punishment denied him due process of law.
There was no error here. Since juries no longer fulfill any function regarding sentencing, the amount of penalty prescribed by the legislature would be irrelevant for their consideration. Comstock v. State, (1980) Ind., 406 N.E.2d 1164; Debose v. State, (1979) Ind., 389 N.E.2d 272.
For all the foregoing reasons, there was no trial court error and the judgment of the trial court should be affirmed.
Judgment affirmed.
GIVAN, C. J., and DeBRULER, PRENTICE and PIVARNIK, JJ., concur.