*1 Floyd POORE, Appellant P.
(Defendant below), Indiana, Appellee
STATE
(Plaintiff below).
No. 29S05-9708-PC-470.
Supreme Court of Indiana.
Aug. Caldwell, Noblesville,
Gregory L. Ap- pellant. Carter, General, Attorney
Pamela Mere- Mann, General, Deputy Attorney dith J. In- dianapolis, Appellee. PETITION
ON TO TRANSFER BOEHM, Justice. presents
This case
question
the narrow
prescribed
whether
the time
limits
Indiana Rule of
ap-
Criminal Procedure
ply
to a retrial of habitual
finding.
we
Because
the time limits are
transfer,
applicable,
grant
vacate the ha-
*2
30, 1993,
petitioned
Poore
November
accompanying
On
bitual offender
enhancement,
ground
for fur-
that
postconviction
and reverse
relief
the
for
opinion.
with this
consistent
proceedings
ther
enhancement was
the habitual offender
the
as a result of the vacation of
valid
Background
Factual and Procedural
11,1994,
April
conviction. On
1970 theft
6,1983,
Floyd P. Poore
April
On
granted
petition
Poore’s
postconviction court
commit a
Herbert Goodwin to
set out with
enhancement,
relief,
and or-
for
vacated
The
stole several items from
burglary.
two
for
habitual offender count set
dered the
County, but were
in rural
house
Hamilton
10,
acting pro
May
On
retrial.
getaway.
making their
arrested soon after
se,
for
trial and
moved
asserted
custody since
has
Poore
continuous
Criminal Rule
that he had
under
7, 1983,
day.
Poore was
April
On
that
16,
days.1
May
seventy
On
to a trial
inducing,
causing
aiding,
or
charged with
1994,
court set
the case for trial
inducing,
causing
burglary;
aiding,
9,
ninety-one
August
year,
jury convicted
theft. Later
that
1994—
1994,
6,
May
him to
motion. On June
counts and found
Poore’s
10th
Poore
both
22, 1986,
date,
objected
habitual offender. On December
to this trial
noted
Poore
and or-
request,
again
this Court reversed
convictions
speedy-trial
of his
dered
new
Poore
but
early
an
trial under
demanded
(Ind.1986).
13,
On November
1994,
N.E.2d 1058
12,
July
was denied. On
motion
1987,
aiding,
again
Poore was
convicted
yet
pro
object-
se motion
Poore filed
inducing,
causing burglary, but was ac-
ing
August
trial date
asserted:
jury
also
quitted on the theft
This
I
or ask for
“Under no circumstance do want
him be
habitual offender. The
found
Rules
a continuance.... Under the Indiana
twenty
trial court sentenced
Poore
seventy
[sic]
of Criminal Procedures
by thirty years for the habitual
enhanced
imposed by
ap-
day of
limitation
fifty
finding, for a total
term
to me.”
plies
years imprisonment.
The Court
19,
seventy
July
days after his
On
Poore
affirmed.
1994—
a motion
request
filed
(unpublished
(Ind.Ct.App.1991)
table deci-
—Poore
argued
discharge in which he
that he was
sion).
being
illegally. Poore contend-
postconviction
vacated
court
6,1993,
that,
complete-
April
as of
ed
theft,
1970 conviction for
which was
Poore’s
his
on the
ly served
support
predicate
felonies
one of
used
burglary
and therefore was
enhancement. On
Poore’s habitual offender
enhancement.
under
vacated
a “motion to
Poore filed
October
orally
the motion from
court
denied
in which he at-
correct erroneous sentence”
day
of the retrial. At
the bench on the
as invalid due to the
tacked
enhancement
appointed
point,
attorney
had been
that
predicate
its
felonies.
of one of
vacation
represent
colloquy
In a
with the
Poore.
proce-
Finding
proper
not the
day
counsel main-
on the first
court
claim, a trial
dural mechanism for Poore’s
Rule 4 should have been available
tained that
Ap-
court denied
motion.
Court
he was incarcerated and
to Poore because
peals upheld this
on the mer-
determination
court
an information. The
tried under
its,
remanded and ordered that Poore’s
rejected
argument
and stated
prejudice so
motion be dismissed without
speedy-trial request under Rule
challenge
because,
dubious”
was “somewhat
postconviction relief. Poore v.
view,
seventy-day
limit
did
(Ind.Ct.App.1993).
court’s
N.E.2d 478
which motion started
apparently
need not determine
1.
was Poore’s second motion
This
running
seventy-day
first motion
because even if it was
trial under
His
clock
file-stamped
latter,
proceeding
in the record as received
Poore's habitual
County
Office on
Clerk’s
May
Hamilton
days of
held within
explained,
that are not
1994. For reasons
May
1994. We
filed a second motion on
August
apply
to retrials. On
a Rule
does not
to retrials and that
event,
jury
found Poore to be
habitual offender.
received a trial within a
court
On October
the trial
sen-
reasonable time.2
twenty years
burglary
tenced Poore to
on the
Appeals,
judge
dis-
by thirty years
ha-
enhanced
*3
4(B)
senting, held that Rule
was not available
finding.
gave
court
bitual offender
inapplicable
to Poore because the rule is
to
days
Poore 4219
credit for continuous time
sentencing proceedings.
660 N.E.2d
appealed
served since
1983. Poore
at
a
reaching
594-95.
different result
Appeals
and the Court of
affirmed. Poore v.
today,
emphasize
A
function over form.
State,
(Ind.Ct.App.1996),
N.E.2d 591
determination, although
habitual
reh’g denied.
lating
sentencing
in terms of its result and
Applicability of Criminal Rule
separate offense,
technically
pend-
not a
is a
Indiana Rule of Criminal Procedure
ing
proceeding
criminal
that has several hall-
any
provides
in
“[i]f
that
defendant held
marks
of
trial. And the restraint
jail
on an indictment or
affidavit shall
imposed
Poore’s
pending
that was
the
trial,
move
dis
he shall be
precisely
outcome of that determination is
charged
brought
seventy
if not
to trial within
why
guarantees
Rule
trial
(70)
calendar
from the
of
such
an incarcerated defendant.
motion_”
4(B)(1).
Ind.Crim.Rule
Rule
then details number of conditions that
MB)
A. Text Rule
of
bring
excuse the failure to
the
stated,
days. Concisely
plain language
trial
First we deal with the
(1)
exceptions
parties
of the
the
are:
the defendant caused
Rule. The
have not directed
cases,
delay;
the
the court’s calendar
too
us to
Court of
was
none,
congested
the trial
that
elaborating
meaning
hold
time.
cited
Id.;
State,
phrase
jail
Jackson v.
663 N.E.2d
767-68
“held in
on an indictment or affi
(Ind.1996).
signs
Although
There are no
in the record
used
davit” as
Rule
not en
exceptions explains
tirely
that either of these
ambiguity,
clearly
without
this element
delay
parties
in this
contemplates
custody
case and
do not
in
on a
contend otherwise.
If
had
pending
court
criminal
Poore’s circum
congestion
required by
Indeed,
made a
as
requirement.
stances satisfied this
pre-
Rule
that determination would be
the State maintained at trial that Poore was
State,
appeal.
original
sumed to be
v.
valid
Clark
tried under the
information
(Ind.1995).
659 N.E.2d
that
in
was filed
1983. This issue arose
delay-
contention,
this did not occur
far from
the context of
originally
Poore’s
ing
proceeding, appears
discharge
have done
made in his motion to
and renewed
trial,
expedite
it. The State does not
that
new information had
untimely.
contend that
arraignment
Poore’s motion was
filed
a new
be held
argues
that he was entitled to the
on the habitual offender count. The trial
benefit of Rule
and that he must be
court
ground
denied Poore’s motion on the
discharged because the Rule
com-
was
tried under the
plied
responds
with here. The State
and had
arraigned
information
when he
exceptions,
2. The trial court
require
denied Poore’s motion for
to certain
and does not
ground
trial under Rule
on the
motion
the defendant. The decisions
did
to retrials.
In its trial
4(C) inapplicable
to retrials are not
motion,
opposing
brief
cited
point.
applies
long
to retrials so
as the
dealing
application
several cases
with
4(B) request
defendant makes a Rule
after the
4(C) to
See
retrials.
State ex rel.
v.
Brumfield
State,
Young
retrial has been ordered.
v.
Court,
(Ind.1981);
Perry Circuit
3. This
punishment
prosecution
enhancing
second
holding
act of
a sentence
that the
predicate
on which the enhancement
felonies
grounds
double
does not constitute
recidivism
.
only
oppor-
gets
one
See,
the State
e.g.,
based.
jeopardy.
Marsillett
support
tunity
present
evidence to
(Ind.1986);
sufficient
Hall v.
(1980).
the enhancement.
405 N.E.2d
Ind.
4(B).
Policy
requested
B.
considerations
trial is
under Rule
Stated
way,
policy
restraint on
is one
Today’s
guided by
result is also
well
underlying
only
but it is not the
underlying
established rationales
policy.
anxiety
There is also
and humili-
In
accompany public
ation that can
accusation.
Poore,
available
the Court
These considerations
are unrelated wheth-
Appeals majority reasoned that Poore was
er the accused
other
being held before the retrial not under the
grounds
at the
trial is
time the
de-
pursuant
enhancement but
Equally importantly,
prompt
manded.
tri-
felony.
594-95. As
al enables
make his or her
observed,
ap
dissent
has some doctrinal
exculpatory
ease before
evidence vanishes
however,
peal.
Id. at 597. Even assuming,
major-
becomes stale. The Court of
jail anyway
have
would
been
ity
concluded that the difficulties caused
burglary
to his sentence on the
due
convic
passage
of time can
benefit
tion, he still
entitled to the
would
by making
proof
the State’s
more
Fossey
benefit of Rule
difficult.
660 N.E.2d at
That is
173, 179-80,
Ind.
cases,
likely
imagine
true most
can
judicially-created excep
we concluded that
where,
example,
scenarios
mistaken iden-
availability
tions
of Rule 4 for a defen
tity
dimming
or alibi are in issue and the
*5
“seeking
pending
a charge
dant
trial on
operates to
memories
the defendant’s disad-
he,
time,
jail
while
in
at the same
on
vantage.
another conviction”
be main
claims,
documenting
Poore
without
light
prece
tained in
of U.S.
rules,
point,
that under the credit-time
citing Fossey,
dent. Without
Gill
seq.,
35-50-6 et
he would
Ind.Code
267 Ind.
prison
been released from
on
underlying
(1977)
proposition:
reiterated this
“The fact
burglary conviction
he was retried as
before
post-arraign
that incarceration
such
August
a habitual
in
of 1994. As of
period may
ment
required by
also be
an
April
half
had served
of his
in
order
another
ease does
render Crimi
burglary.
sentence for
Between that date
inapplicable.”
nal Rule 4
See also Smith v.
day
and
1994—the
the habitual
167, 170-71,
267 Ind.
offender enhancement was set aside—Poore
(1977) (discussing Fossey
serving
asserts
he was
time
under
available
a defendant
Thus,
only.
between
charge only
on
if the
jury’s
the enhancement was
vacated
defendant was in “exclusive control of the
later,
habitual offender
four months
Indiana”).
recently implicitly
possibly
jail only
Poore was at least
in
be
aspect
reaffirmed this
in Jack
pending
cause of the
pro
son, which ordered that
ceeding.
Appeals majority
The Court of
discharged
comply
due to failure to
with the
policy
discussed some of the
considerations
case,
Rule’s time limits. In that
Jackson was
underlying
right
speedy trial,
ato
serving
a sentence on
unrelated
notably
possible
absent was this
on
restraint
the time he
demanded and failed to receive
liberty.
The most fundamental con
Jackson,
speedy trial.
entitled to *6 where, determination, opinion. especially of this
here, possible it is that the offender is Justice, SULLIVAN, dissenting. potential The se no other verity readjudi- of the outcome is all the more reason Although addressing itself to the repeat to an accused offender to make re- enable of habitual offender status after eation days prove its case appeal, opinion the State Justice Boehm’s versal on 4(B) provides. proposition as Rule for the that re- appears to stand prosecution of a criminal after rever- the consti This case does involve subject to appeal sal on is the requirements guaranteed right speedy by tutional to of Ind. Criminal Rule To extent the Indiana and Federal Constitutions. holds, opinion so I dissent. Crimi- implement is intended to the constitu nal Rule makes no reference to Clark, 551, right, N.E.2d at but tional 659 reprosecution for a criminal defendant Notably, important has some differences. I we reversal and do not believe that should recently seventy-day held that the This requirement such a into rule. read prescribed by bright limit line 12(D)(1) spe- to our Crim.R. which contrasts Prejudice to in effect rule. the defendant applicable cifically that rule is provides that presumed balancing part is not by for a new trial cases “remanded to. Jackson, analysis. at Appeals.” or of Court Cfi suspects deprive criminal (“If 18-1-405(2) (1986) Colo.Rev.Stat. pending the outcome an unresolved in conviction which is reversed results comply it must charge, criminal but be appeal, new trial must commenced doing Without the incentive so. after the date of the within six months adjudication provides prompt for by from ceipt the trial court the mandate prosecutions, of criminal an accused could court.”). appellate jail essentially mercy languish in discusses, discretion, protected majority opinion two of judicial prosecutorial As the or frequently justifications by opaque most mentioned the more contours of the 42 are prevent trial rule undue who secures his defendant reversal of prior oppressive appeal enjoys or her conviction on still incarceration to trial to a trial under both the United anxiety
and to minimize and concern accom States and Indiana public Constitutions. These panying accusation. United States rights Wingo, are in Barker v. Ewell, 116, 120, delineated 407 383 U.S. 776- S.Ct. U.S. (1966). S.Ct. L.Ed.2d 101 15 L.Ed.2d Criminal Rule and Fortson 269 Ind. by requiring addresses those concerns (1978). 168, 379 N.E.2d Further good in a reasonably position the state more, a criminal who re secures try against its ease the accused at the time of a or appeal versal sentence on charges are if filed. For the State is not enjoys process right against due federal ready go the defendant can exer vindictiveness retaliation which could well rights cise his her under the rule and reprosecution be violated if after reversal rule, then, discharge. secure serves to appeal unreasonably delayed. North prevent charges hanging criminal from over Cf. Pearce, Carolina v. U.S. periods accused extended head (1969) (Due S.Ct. L.Ed.2d case, of time while the State its assembles “requires Process Clause that vindictiveness subjecting the while the defendant to undue against successfully for having incarceration, oppressive anxiety attacked play his first conviction must picks concern. But because the State part in the sentence he after a receives new filed, charges on which are trial.”). I provi believe these constitutional position making judgment, provide protection sions sufficient in the cir filed, the time are toas whether it they cumstance at here. To issue the extent ready try will be the case if not, rule, do I change believe our we should accused so demands. law, case amendment All of this differently works for retrials. would take into account the differences be prosecutor No is the able to start the reprosecution. tween the trial and trial; leading appeal clock the court on effectively initiates period leading the time reproseeution.
up to certainly While it is pre-
true that the degree State is some
pared any reprosecution by virtue *7 prosecuted before,
fact that it the same case realistically
it cannot be said that situa- years tions are the same. Several at least Alphonso BIRDSONG, Appellant (Al- passed will have since the (Defendant Below), here.) passed most eleven Per- prosecutor’s sonnel in the office be dif- ferent, say nothing availability Indiana, Appellee STATE of And, course,
witnesses and evidence. (Plaintiff Below). prosecutor local has little for knowing basis No. 49S00-9603-CR-190. when appeal the court on will rule. Indiana. jurisdictions
Other
court-promulgated speedy trial rules
do
Sept.
reprosecution
of criminal
appeal.
after reversal on
See State
(Ohio
Girts,
App.
WL 321109 *7-8
12, 1997);
June
Donalds v.
291 Md.
(1981). I follow would the same rule for our
state.