Williams v. State
431 N.E.2d 793
Ind.
1982
Check Treatment

*1 793 damages justified, tal was and the Ind.App. $7,000 169 Pappas, Comm. v. damages is reinstated. award of Here, however, ultimate loss Apostal’s has Finally, Crestwood contended capable not of ascertainment jurisdiction enjoin no the trial court had revealed, trial, for, as the evidence dissolving corporation its officers from improving the lots which the moratorium on reconvey corpo to order them to into and had been occasioned Crestwood’s breach rate assets monies which had been transfer post-trial. and continued indefinite red into a trust. court’s order Any Apostal could have offered conditional satisfaction of the made regarding City might when the of Hobart judgment. completion improve- permitted have corporation, whether The officers of the product of con- ments would have been order, in the would have they were named jecture; consequently, any testimony re- it, that a bound is axiomatic garding completing the increased costs of through corporation can act its offi- project reduction and the concomitant Appeals, we note Like the Court of cers. Apostal’s profits would have also been significant any have not devoted parties speculation. unadulterated appeal; it is argument to this issue on any It has been measure any related appropriate that a resolution of damages enough of to ac- be flexible in the satisfac- questions arise peculiar commodate the necessities of judgment be addressed tion Sales, Jerry Ford Inc. situation. Alderman proceedings. of those context 291 Bailey, Ind.App. v. 154 reasons, foregoing For all the Here, N.E.2d 617. the un- N.E.2d The decision of the no trial court error. mora- usual circumstance of the indefinite judg- Appeals of is vacated Court inspired inception by torium at its Crest- the trial court is all ment of ques- wholly wood rendered uncertain project tion whether the would ever be likewise, completed; any potential comple- Judgment affirmed. tion date and concomitant determination of improvements increased costs of were in- DeBRULER, J., GIVAN, and PREN- C. degree capable of determination with PIYARNIK, JJ., concur. TICE Meanwhile, certainty. Apostal confront- of property continuing specter yearly ed the

taxes on the lots which breach Crestwood’s

had in limbo. circumstances, it

In the face of these necessary damages be measured breach,

at the time of the without reference subsequent fluctuations in value conjecture. might opined through be Com WILLIAMS, Appellant, Earl Robert

pare, County Ag-Services, Inc. v. Decatur v. 644; Young, (1981) Jerry Indiana, Appellee. STATE Sales, Bailey, supra; Alderman Ford Inc. v. Klinger, Ind.App. Foster v. No. S Kelley, 175 N.E. Goodwine of Indiana. Supreme Court Ind.App. 70 N.E. 832. The trial court sup ample with evidence to 3, 1982. port the conclusion that at the time of the breach, Apostal profit suffered a lost

$1,800 on each of his lots. Conse Apos-

quently the court’s decision to award *2 Balanoff, Hammond, appel-

Rebecca for lant. Pearson, Gen.,

Linley Atty. Carolyn E. M. Brawner, Gen., Deputy Atty. Indianapolis, appellee.

GIVAN, Chief Justice. by convicted a Robbery and declared to be an habitual criminal. He was for ten sentenced years robbery charge and after a hearing bifurcated was declared an habitual criminal and his sentence was increased to thirty years. following

The record shows the facts. At approximately February 12:45 A.M. on Hammond, Pantry the White Hen Indiana was robbed. The robber was de- mask, scribed as a man a a maroon shirt, floppy and white gun colored coat. He and de- manded in the cash drawer. Miller, employees Paula one of the restaurant, gave paper money the man con- bills, sisting of one and five dollar and some food in a paper bag. brown He left the scene of the bearing in a blue automobile Illi- plates reading nois license EDY 10. Al- face, though a mask covered most of his identify victims of the were able to voice, him as male the tone of his and as person by observing a black his skin and hair not covered the mask. Witnesses being described about 5'8" and of medium build.

Investigating general furnished did fit the description officers so description, including given with the above far as size and race the victims of automobile, license number of the drove to but his conduct at the time of his nearby housing project to search for the recovery money suspect. parked found a There vehicle general denomination taken in the’rob- description given corresponding to the in- bery near the supports scene sack cluding the license number. finding was, that he *3 seated in the car the time of its dis- the robber.

covery. arresting ap- The officer ordered Although appellant took the witness pellant out of the automobile at which time presented defense, stand and an alibi claim appellant jumped from the car and dove ing present apart that he was in a friend’s between the car nearby parked and a car. shortly ment until before he was arrested arresting The persuade officer was able to police, merely the this was evidence him to come out from between the cars at to the were enti time he was under arrest. weigh along tled to with the other evidence A search was then made of the area and making in their decision as to who to be paper bag of the same denomi- lieve and who not to believe. Borden v. nation taken in the was found. At State, (1980) Ind., 400 N.E.2d 1368. We station, police the a search of Mr. Williams support hold the evidence is sufficient to seven one-dollar food At jury. the verdict of the the time of his appellant arrest the wearing coat, also claims the trial dark and a court denying maroon and white shirt. erred in his motion for a continu ance of the trial on the habitual criminal At appellant presented the an alibi charge grounds insuffi defense. claims the evidence is prepare cient time for his counsel to insufficient for the to find that he was investigate trial and the perpetrator the robbery. Appellant gave filing the notice of the State upon makes this claim based the fact that only second count to Mr. Williams’scounsel the victims of the could not identi- days before trial commenced. The fy personally and were not sure that habitual criminal statute does not establish the clothing appellant at the separate merely provides for the clothing his arrest was the same imposition penalty of an enhanced for the robber, worn by although it was similar State, instant crime. Norris v. appearance. in points He further to the 394 N.E.2d 144. fact fingerprints that no were recovered from the car in which he sitting guilt The issues of a defendant’s or time apprehended. he was He also con- innocence of crimes of which he has tends the money recovered in the been convicted are not before the trial court sack at the scene of his hearing. in an habitual criminal That is not proven not positively to be the taken legality of proper forum to contest the in robbery. He further claims that it way those sentences of collateral police was not in until he was station See, State, (1965) Walker v. attack. stamps that food person. were found on his (final judgment Ind. 204 N.E.2d 850 in stamps plant- It is his claim that these were may criminal case not be attacked in a later ed on him department. He thereto); Kuhn v. ex case collateral only claims the him is cir- VanNatta, (1980) Ind.App., rel. 404 N.E.2d cumstantial and is not sufficient to sustain (defendant’s on attack the conviction. proceed tions at habitual traffic offender attack). the case at ing impermissible bar the evidence as collateral In above only recited is more than to issue before the trial court is whether sufficient has, support the verdict of the or not been found jury. Not guilty required and sentenced as under the U.S. 88 S.Ct. 19 L.Ed.2d State, statute of offenses. McCormick v. 256 Ind. very recently Once those convictions have been estab- State, (1981) Ind., Barnett v. lished then the court impose the en- 625, we held it was error for a trial hanced post- sentence under the statute. A deny court to requested continuance ponement of the trial date is not mandatory response to an charge amendment of the and it is incumbent the defendant include a recidivist count made on the first demonstrate to the trial court that a contin- morning of trial. We went on to conclude State, uance is necessary. Hooks v. post-trial that from the appellate perspec 266 Ind. 366 N.E.2d 645. This Court tive, the error prejudice did not the sub will not reverse the decision of the trial rights stantial of the accused. And I be court unless showing there is a clear lieve the same is true here. Appellant ad moving party was substantially preju- partial mits that he had discovery on the State, supra. diced. Hooks v. *4 habitual offender matter before In the case at bar the took contending while get that he did not concerning witness stand and testified depose witnesses, chance to two he does not his convictions. Under the circum contend that he did not have access to stances the trial court was well within his them. contending while that province to deny the continuance. The fact subpoenas transcripts issued to obtain appellant’s prior convictions was a mat guilty plea proceedings in 1974 — 1975 cases ter of record which he knew. There is no honored, were not he does not assert that he showing that a pro continuance would have had no access at all to them or to official duced information which would have documents which reflected helpful been to appellant in this regard. tions. The suggestion convictions

might be collaterally attacked was not a

proposition which could have properly

litigated in the instant case. We find no

error in the failure of the trial court

grant . a continuance.

The trial court is in all CROWDUS, Appellant Jesse HUNTER, PIVARNIK, PRENTICE and (Defendant Below), JJ., concur. DeBRULER, J., concurs in result with Indiana, Appellee STATE of opinion. (Plaintiff Below). DeBRULER, Justice, concurring in re- No. 381S56. sult. Supreme Court of Indiana. The Court considers whether the accused contest defending convictions in count, a habitual criminal course of considering whether a continu-

ance was properly agree denied. I with the

general proposition subject

are not to collateral attack in recidi- these; however,

vist proceedings such as

the same time it must be

there are rare this rule instances give Texas, way. Burgett v.