Indiana courts have stated that a defendant's request or agreement to continue an omnibus hearing, prior to the setting of a trial date, does not result in delay chargeable to that defendant under Criminal Rule 4.Hurst, 688 N.E.2d at 407; Morrison v. State, 555 N.E.2d 458, 461 (Ind. 1990); State ex rel. O'Donnell v. Cass Superior Court, 468 N.E.2d 209, 211 (Ind. 1984); Ritchison v. State, 708 N.E.2d 604, 606 (Ind.Ct.App. 1999),trans. denied; Nance v. State, 630 N.E.2d 218, 220 (Ind.Ct.App. 1994),aff'd on reh'g, No. 49A04-9209-CR-316 (June 29, 1994); Harrington v. State, 588 N.E.2d 509, 511 (Ind.Ct.App. 1992); Solomon v. State, 588 N.E.2d 1271, 1272 (Ind.Ct.App. 1992).
In support of his argument Cook cites Miller v. State, 570 N.E.2d 943 (Ind. Ct. App. 1991) (Hoffman, J., concurring with opinion) as well as State ex rel O'Donnell v. Cass Superior Court, 468 N.E.2d 209 (Ind. 1984) (DeBruler, J., dissenting) and Morrison v. State, 555 N.E.2d 458 (Ind. 1990) for the proposition that for the purposes of Criminal Rule 4(C) a defendant is not charged with a continuance for which he moves or to which he agrees before a trial date is set. Citing our recent decision in Carr v. State, 790 N.E.2d 599 (Ind. Ct. App. 2003) the dissent agrees with Cook.
According to Frisbie, none of the delays occasioned by his request for continuances were attributable to him because continuances prior to the setting of trial are charged to the State. In support of his argument that the State should be charged for the delay caused by his continuances, Frisbie cites State ex rel. O'Donnell v. Cass Superior Ct., 468 N.E.2d 209, 211 (Ind. 1984) and Morrison v. State, 555 N.E.2d 458, 461 (Ind. 1990), trans. denied, for the proposition that for Crim.R. 4(C) purposes, a defendant is not charged with a continuance for which he moves or to which he agrees before a trial date is set. In O'Donnell, our supreme court determined that an agreed continuance, which occurred prior to the trial setting, was not attributable to the defendant because the defendant did not realize at that point that the trial date would be set beyond the boundaries of the rule, and foremost, because the defendant notified the trial court within two days of the trial setting that the date was outside the rule's time frame.
For Criminal Rule 4(C) purposes, a defendant is not charged with a continuance for which he moves or to which he agrees before a trial date is set. State ex rel. O'Donnell v. Cass Superior Ct. (1984), Ind., 468 N.E.2d 209, 211; Morrison v. State (1990), Ind., 555 N.E.2d 458, 461. Miller's motion for continuance of the trial, however, is properly chargeable to Miller.
There is disagreement as to whether a defendant causes a delay of the trial date when the defendant's actions result in a postponement of the proceedings before a trial date is set. InState ex rel. O'Donnell v. Cass Superior Court, where the defendant agreed to a continuance sought by the State, we held that the defendant's charges should be dismissed because he was not brought to trial within one year of being charged. 468 N.E.2d 209, 211 (Ind. 1984). In the opinion, we stated, "When a defendant has agreed to a continuance prior to the setting of any trial date, those days shall not be attributed to the defendant for the purposes of Ind.R.Cr.P. 4(C)."
Some of our more recent Criminal Rule 4(C) opinions have been more specific as to the effect of timing on determining whether a defendant's actions caused a delay in trial. In State ex Rel. O'Donnell v. Cass Superior Court, 468 N.E.2d 209 (Ind. 1984), this Court held that a defendant who agreed to a continuance, prior to the setting of a trial date, did not cause a delay. Id. at 211.
[11] Under Criminal Rule 4(C), a defendant generally is chargeable with a delay effected by his own motion for a continuance. State ex rel. O'Donnell v. Cass Superior Ct. , 468 N.E.2d 209, 210 (Ind. 1984). However, our Supreme Court has recognized an exception—which we shall call "the discovery exception"—when the continuance is caused by the State's delay in providing discovery.
This time period counts toward the 4(C) calculation. In State ex rel. O'Donnell v. Cass Superior Court, 468 N.E.2d 209 (Ind.1984) the Supreme Court discussed the effect of a defendant's agreement to a State-sought continuance for purposes of Criminal Rule 4(C). In O'Donnell, the trial date had not yet been set when the defendant agreed to the continuance.
Pursuant to Crim.R. 4(C), the State needed to bring Solomon to trial within 365 days of his arrest or by December 28, 1989. See State ex rel. O'Donnell v. Cass Superior Court (1984), Ind., 468 N.E.2d 209, 210. The record reflects that on April 12, 1989, the parties jointly moved for a continuance of the trial scheduled for April 20, 1989.
The Court of Appeals attributed the first delay, shown at bracket A above, to the defendant because his motion to continue the omnibus hearing delayed the setting of the trial date and hence the ultimate trial date. This comports with Justice DeBruler's dissent in State ex rel. O'Donnell v. Cass Superior Court (1984), Ind., 468 N.E.2d 209, 211. The defendant correctly now claims that the treatment of this delay contravenes State ex rel. O'Donnell.