*1 CITY, INC., and Richard NAKED
Drost, Appellants, Ill., Cohn, Chicago, Max F. G. Frederick Indiana, Appellee. STATE of appellants. Rettig, Indianapolis, for Gen., Pearson, George Atty. Linley E. No. 3-282A23. Gen., Huff, Jr., Indianapolis, Atty. Deputy Indiana, appellee. Third District. April PETITION DISMISSING ORDER REHEARING
FOR Indi- Attorney General Comes now the Jr., George B. by Deputy, ana Rehearing” “Petition for files his February of this issued on appeal which 1982 in the above entitled Drost for of Richard pending his setting of an bond Court; “Petition for this said appeal to following words and Rehearing” is in the figures, to-wit: (H. I.) And, Drost his At- Comes now Richard Rettig Max torneys, Frederick F. Cohn and Petition Opposition files his “Brief in Rehearing” following is in the figures, to-wit: words and (H. I.) said having read and examined Op- Rehearing” “Brief “Petition for be- Rehearing” Petition for position to premises, now finds: ing duly advised in 1. That the prior to was filed Richard Drost of his to this Court. submission proceedings 2. That the record of the un- Superior Court the Newton 80-77 and 78 der Cause Number SPRS with the Clerk of have not been filed this Court.
3. That the Order issued this Court 22,1982 granting pursu- tion of Richard Drost was issued 6(B), Appellate Ind.Rules of ant to Rule Procedure.
4. That the discretionary under Rule Procedure. 6(B), Ind.Rules of *2 Drost, prevent Appellant, breathing That Richard difficulties. He can- has a acquired Seventy-five thousand not lie on his left side and must be ($75,000.00) appeal by pay- dollar hourly turned at night. ing a nonrefundable bond fee of seven require “Mr. Drost will total care. He thousand five hundred dollars himself, bathe, is unable to feed do oral ($7,500.00) and has filed said hygiene, hair, shave, move, wash his bond with the pur- Clerk of this Court turn, propel wheelchair, a transfer suant to said Order. bed, from a wheelchair to or sit on a Drost, That the Appellant, Richard commode to defecate. He will be has physical submitted to a examina- prone to skin breakdown without inten- tion at the Westville Correctional Cen- sive skin care measures round the ter as ordered this Court and that clock. report said medical stated in part that: “Another physi- area of concern is the “This man’s equivalent condition is cal safety of Mr. Drost. We will not be that of a quadriplegic. He can move able to watch him continuously. He is fingers, right slightly raise the arm physically protect unable to himself in and the left arm about four inches. He any except manner help. call for can move his neck but has no shoulder he by any should be molested strength. He is unable to move his offenders, other a hand over his mouth torso, lower extremities. He has no prevent even this possibility. broken skin any areas or indication of present pro- “With the staff we cannot skin deterioration. He noticeably has a even vide minimal care for basic Mr. swollen left foot with swelling some Drost. more Special One Attendant right foot. isHe unable to move either per provide would be needed shift foot, and must they placed until this basic care and still care for the someone else moves them. He wears medical/surgical infirmary pa- other special shoes due to the continuous Therefore, tients. an additional six swelling. He states he is not on Special positions Attendant medication and rarely any. needs If he needed to Special extra At- must take medication gets he either it duty tendant on each shift.” liquid in form or chews the tablets be- report and said medical concludes that cause he is unable pills. to swallow He it will taxpayers cost the liquid takes Geritol with iron. He had thirty-five forty-five thousand dol- to clear his frequently throat due to ($35,000.00 $45,000.00) year lars accumulation mucus. He has diffi- care for Richard Drost if he is not culty digesting foods and states he has placed probation on in his home and metabolic disturbances from en- expense. taken care of at his own larged liver. His diet practically salt 7. That the Order of this Court issued free and in sugar, low but he chooses 22,1982 February on in the above enti- from regular foods. He does use a tled in all things cause has been com- specially prepared honey. He has diar- plied Appellant, with Richard usually rhea two —three times a day Drost. and must prone position to 8. That the Order of this Court issued adequately eliminate. He uses a urinal February on 1982 in the above enti- and does not need a catheter at opinion tled cause is not a present gives time. He history writing law the facts of the drafts, reacting to high cold weather or above entitled easily heat. He spikes high tempera-
ture, has chills with 9. That the Order of this Court issued accompanying diz- 22,1982 anxiety. ziness and February He maintains he collat- high needs a humidity eral environment incidental to the with a stable temperature of 80-82 to majority opinion eventual written opinion No written has been when to be handed down this Court procedures have preliminary present appeal.
all of the
This
handed down in
so
complied
been
with
that this
procedural
preliminary
merits
can consider the
proceedings
stages. The record of the
has
Indi-
Attorney General of
10. That the
not been
as of this date. The Order
filed
George
Jr.
Deputy,
B.
ana
issued
filed a “Petition
prematurely
has
Appellant,
bond for the
*3
11(A),
to Rule
Rehearing” pursuant
Drost,
merely
is “. ..
collateral and
Richard
Appellate Procedure.
Ind.Rules of
final
to an eventual
procedurally incidental
Rehearing”
That the “Petition for
11.
Wayne v.
of
City
decision.”
of Ft.
Board
of
by
Attorney
herein
General
filed
4,
735.
(1971),257 Ind.
Trustees
it shall
should be dismissed and
Indiana
Supreme
In
of
the Indiana
City
Wayne,
Ft.
be so ordered.
to
petition
a
transfer
Court dismissed
of a
CONSIDERED,
brought
the Court on
denial
before
IT
THEREFORE
OR-
IS
filed
DERED,
“Peti- motion
or dismiss
in the
AND ADJUDGED that the
to affirm
Rehearing”
herein
the At-
A
by
Appeals.
tion for
filed
Indiana
of
unanimous
Court
Deputy,
torney
by
General
Opinion
by
Indiana
written
Supreme Court
day
Jr. on the 11th
of
George B.
petition
Justice
held that
Hunter
March,
hereby
be and the same
upon peti-
predicated
transfer
was
a
dismissed.
of
rehearing
Appeals
for
in the Court
tion
petition.
premature
was
dismissed
by
above
ruling
The rationale for the
stated:
Justice Hunter further
When
for
petition
is as follows:
a
Court
of
rehearing
operating
is filed in the Indiana Court
preserve
“If
we are
11(A),
Ind.Rules
pursuant to
Appeals
practice
scheme
established
appellate
of
Procedure,
pri-
of
it is filed “...
Appellate
procedure,
of
it
by
appellate
our
rules
petition
as the basis for a
to transfer
marily
appellees’ petition
clear
transfer
that
A. Bob-
Supreme
to the Indiana
Court.” II
Implicit
in Rule
must be dismissed.
bitt,
Proce-
Appellate
Indiana
Practice and
AP11(B)
Ap-
that the
requirement
is the
626,
dure,
p.
Section
case with writ-
pellate
a
Court decide
opinion
may
transfer
be
ten
before
rehearing
for
object
petition
The
referred
can-
sought. The order above
out mistakes of law or of fact
point
disposition
allegedly
by
made
the Court of
not
of
which were
be considered a
arriving
in
at its written
Appeals
sense of the word but
any
cause in
Bobbitt,
opinion.
Appellate
II
Indiana
A.
618-7,
pp.
Section
Practice
eventual final decision.”
incidental to an
2; also see Lesh v. Johnson Furniture Co.
PAUL examination, it is determined Judge Chief of Correction will Department STATON, Judge ROBERT H. able to maintain defendant properly Correctional Cen- at either Westville NEAL, Judge ROBERT W. institution that faciiity ter or another or dissenting. Judge, HOFFMAN, Presiding Department is under contract prob- medical for care of acute Correction dis- order majority’s from the I dissent added.) (Emphasis lems." rehearing. missing State’s seemingly ignore order, specific makes In its has deter- Superintendent fact appears Finding number findings of fact. of Correction Department mined that the attempt than an nothing to be more Drost. maintain properly would be able to original stay its strengthen the basis of although Drost note that interesting It is from a lengthy quote out a crimes, certain pleaded guilty to finding may be This report.” “medical liberty he remains at accordingly, sentenced taken out of misleading when somewhat properly could be despite the fact that he from a docu- quote actually context. of Correc- Department maintained As- Interview and “Nursing entitled ment physi- might whether tion. One ask one This sessment.” document beyond him put cal disabilities and ailments transmitted packet of materials report the reach of the law. of Correc- Department dismissing In the order State’s include: a Additionally, the materials tion. *5 the majority the rules that State’s tion examination, an report, medical dental the because rehearing premature for is tion an hematology report and report, a EKG stay of execu- original granting order the was com- This information x-ray report. procedur- merely “... tion is Superintendent piled and examined final deci- to an eventual ally incidental In a Center. of the Westville Correctional ignores however majority What the sion.” reports of medical packet cover letter to the deny- that the trial court’s is the fact stated: Superintendent was a final order ing stay completed was majority’s examination physical single “The issue. The disposing of a stay pursuant determine1. to Ind. grant ordered to of the original as Department 6(B) in Procedure, Appellate or not the to whether as Rules of the defendant discretion can maintain effect found an abuse of of Correction its denial of injury to his health.’ court and reversed without not The does records. Supreme Rules for a review Court ana of the Court decision of ly, agree Supreme the Indiana Appeals ruling Justice of a final with a former Chief of before Bobbitt, Court, merits; N. who stated final- Arch on the work, Bobbitt, 4) sovereign’s statutory grace II A. Indiana his two volume to let 626, p. Sec- his Practice criminal defendant to bond 12, rehearing Attorney petition ruling for was used tion is a who is that the General sovereign may primarily representing the basis for a statuto- ”... as Supreme (amended 1981). rily appeal. Court.” transfer to the IC 35-1-47-2 granted by assumptions to correct errors number of motions None of these are true. readily Too, Dissenting Indiana is not availa- Opinion the trial courts in ble, overlooks du- suspect number is I would He was sentenced but ration of sentence. very compared years. to the number de- good small when two is taken into consid- time However, petitions eration, for the number of approximately nied. rehearing granted one he would serve comparison to the number year. denied, bond were If his the records of is available from filed and denied to this would be con- Court year, approximate- discharge there were approximating Last this Court. ly cluded at a time from meaningful appeal. rehearing petitions filed. All were for prison denying 432 him the benefit of a thus appear except It ten. denied Supreme is analytical stepping of the Court Finally, Chief Justice fifth stone former primarily correct. which is a reflection of this Court’s
581 27, August 1975. Transfer was nied forecloses the majority now stay. Supreme the Indiana Court rehearing, possi- denied right to seek a State’s 5, Rehearing and transfer on the December transfer, adjudication final of a bly denied, Drollinger to the were dismissed. avenue now available stay. given opportunity to have to have the Court of attempt in its State denial of his reviewed through appli- Appeals’ order reviewed is Appeals Supreme both and the for a writ Supreme cation to the Court. mandate. for majority agree I also cannot that a position,
In
of its
support
as a basis for a
rehearing
“primarily
New Haven
is filed
Wayne
cites
of Fort
v.
4,
Supreme
to the Indiana
the merits is decided. affirmed,
conviction is
pending appeal automatically would be dis- as no would be
solved inasmuch reversed,
pending. If Drost’s conviction is right and the
he will be free as a matter of
re-
unnecessary. Delaying
Denise
Matter of Alfredia
In the
totally
view of the
will render the issue
BORUM,
(Respondent
Appellant
has made
moot.
Inasmuch
below),
issue, I cannot
a final
v.
agree
majority’s stay
Indiana, Appellee
STATE
inciden-
“merely
below).
(Petitioner
tal to an eventual final decision.”
No. 2-681A196.
ex
present
analogous
case is
to State
(1975), 165 Ind.
Drollinger Milligan
rel.
Indiana,
App.