Schwindt v. State
596 N.E.2d 936
Ind. Ct. App.
1992
Check Treatment

*1 justify summary judgment against plaint

iff).7

Reversed and remanded. SHARPNACK, JJ.,

BAKER and concur. SCHWINDT, Appellant-Defendant,

John Indiana, Appellee.

STATE of

No. 49A02-9008-CR-460

Second District. McShane, Treese, Robertson, Kevin Van McShane,

Walters & Indianapolis, ap- for pellant-defendant. Pearson,

Linley Gen., E. Atty. Amy Good, Deputy Atty. Gen., Schaeffer Office Gen., Atty. Indianapolis, appellee. SULLIVAN, Judge. compelled

We are purport- to dismiss the ed before us. There is no final appealable judgment in the matter. case was tried on 9 and before Mr. Master Commissioner. Record at 168. The final jury instructions to the were Chanleys' 7. We decline the assigned invitation to issue July 1. This case was to this office - advisory opinion regarding the use of admis- Reply sions under Ind. Trial Rule 36. See Brief at 7-9. *2 "Judge." Haggerty as also, signed by Jay B. Haggerty apparent, It is that Mr. Judgment judge pro did not act as tem on the dates of of at 148. The Abstract by Jay Hag- B. signed May trial, judgment, sentencing upon was the he numerous other occasions when made "committing judge." Record at gerty as suggestion is made rulings and orders. No the certification of the 163.2 That Haggerty purports to to signed by Jay B. contrary. the Judge" "Special he did so as reflect that Finally, question Jay that B. it is without (Record 556) fact that cannot alter the was, during Haggerty at no time the Special Judge at the time of the he was not case, regular judge course of this the of trial, sentence. judgment or the court. us, posture of the case before 183 of the clear that Rule It is ie., Haggerty only in the that Mr. acted is the of Procedure Indiana Rules Criminal Commissioner, re capacity of a Master special judge a method which exclusive quires that we honor the clear and unmis qualified preside to may appointed and be dictate of our Court takable litigation. Skipper v. State over a case ex rel. Smith v. Starke Circuit (1988) Ind., equally is N.E.2d 334. It (1981)275 Ind. 417 N.E.2d 1115. Court ap special judge clear that there was (1991) 2d Dist.Ind. In Landers v. State in this qualification made pointment or held that under App., 577 N.E.2d we therefore, case, involve does not case. Our decision, there the Starke Circuit Court appoint merely irregular a or defective in the case had been no entered Skipper, situation in ment as was the purported appeal was there and that the may that the defect be waived. which held premature. fore special judge a "is It is also clear that (1992)2d Recently, in v. State case, particular act in a appointed to Dist.Ind.App., this court 594 N.E.2d until the case is authority his continues permitted a deviation from the dismissal of, is finally disposed unless the venue in the Circuit requirement inherent Starke (1985) Ind., changed." Kimball v. State us, holding. how- The case before Haggerty If Mr. ever, Woodfork, distinguished is to from be qualified spe- duly appointed and were the supra. matter, Tranberg Judge judge cial improvi an order was Woodfork, In authority to enter or- have had no would signed by the Chief dently entered and rulings in the case. It cannot or make ders Judge authorized the Tranberg, reg- the which Judge that presumed be of an "cure" the absence ap- of the court to unaware of the judge, ular was either subsequent vali when, law, appealable judgment ignore it plicable or chose find of the Master Commissioner's dation example, signed an order on he post an ex Such ings or recommendations. 1990, authorizing psychological a evalua- in the case be not suffice facto act could This order was entered of tion Schwindt. verdict, pro tune order before sentenc- trial and but valid nune after fore us as a therefore, was, Mr. mem- is, that no written ing. apparant, It is because there judge in this of record special oranda, not a memorial Haggerty was note or other Haggerty Jay B. demonstrates that which matter. pro judge, judge only regular a tem Tranberg permits although Judge the appear that It would appealable hearing sentencing judge a final may special the to enter conducted the or a have only by Jay Judgment, signed The statu- judgment. of Abstract I.C. 33-4-7-7. order or comport Haggerty although with I.C. 33-4-7-8 does not tory that therefore scheme indicates (West Supp.1991) states that: which evidentiary conduct the commissioner a order. In shall enter the final trial, hearing, imposition "The court sentencing case, conduct the sen- the court shall criminal the Abstract and the execution sentence hearing." tencing regular Judgment must be done magistrate a "court" does not include The word pro tem or a duly appointed judge or See commissioner. or Breaziel judge. special Dist.Ind.App., 1072. The statute 1st capacity served in a other than as Master The record reflects that Commissioner. See Hutchinson v. State Commissioner, heard this case as Master (1983) Ind., Here, a nune parts but at different of the record he appears "Judge," "Committing Judge," not could validate the acts "Special Judge." So it is uncertain the Master Commissioner because *3 entry nunc be made so judgment whether the was entered that the record will reflect that which was duly judicial authorized officer. done," "actually previously Stowers v. 149, 163, 168. (1977) 403, 266 Ind. 363 N.E.2d 978 has, occasions, This court on numerous (quoting Hayward Perkins v. suspended appeal consideration of an taken 670, simple Ind. 31 N.E. or "when a from a Master ruling Commissioner's and correction of a clerical error in the record is ordered the of the trial court to enter Stowers, sought." supra, 363 N.E.2d at judgment final on the case. See Woodfork 983. (1992), Ind.App., 468; entry "curative" cere- (1989), App., Woodfork Green v. State Ind. ated an anomalous circumstance. - The 130; (1985), Ind.App., Eakins v. State "judgment" of the trial court 1157; (1974), N.E.2d Ingmire v. Butts was entered on March 1992. There was Ind.App. praecipe subsequent entry. no filed to that judicial In the economy interest of proceedings The record of was not filed unnecessary expense, the avoidance of this subsequent entry to that and the briefs case should be remanded to the trial court entry. filed after that were not with an appealable instructions that final If it sequential be considered that be entered so that this chronology judgment, praecipe, record may proceed having without to be com- briefing is more than an inconse- again. menced over quential procedural nicety, such determina- tion must come Supreme from our accompanied by must be substantial

modification of the Appel- Indiana Rules of Procedure, 2(A), 3(B), 8.1(A).

late Rules minimum, At a in situations KINSEY, Gay Appellant- Vontris which the salvage seeks to Plaintiff, purported appeal it has before been dis missed Appeals the Court of or the Court, there should request be a Kay Kinsey, Linda BRAY and Rex parties praecipe, to refile the Appellees-Defendants. subsequent and briefs of the sal No. 03A01-9110-CV-301. vaging order the trial court but within appropriate periods time set forth in Appellate the Rules of Procedure. First District. purported appeal This is dismissed and appellant Schwindt is ordered released Rehearing Aug. Denied custody Department from the of the Transfer Denied Oct. custody Correction and returned to the County the Marion Sheriff.

SHIELDS, J., concurs.

BUCHANAN, J., opinion. dissents with

BUCHANAN, Judge, dissenting. respectfully

I dissent to the dismissal of appeal.