Opinion
John M. Lyons, Valparaiso, for appellants.
Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.
ON PETITION TO TRANSFER
PRENTICE, Justice.
This matter is before us upon the State's petition to strike the petition to transfer of the appellant, Frank Bailey. Said motion is granted, and said petition is now stricken from the records, with conditional leave to reinstate same, without payment of additional costs. The condition of such leave is that the Court of Appeals, Third District, shall deny the petitioner's petition for rehearing filed simultaneously with said petition to transfer, in which event said petition to transfer shall be reinstated, upon applicant's motion filed within twenty (20) days from the date of said denial.
The circumstances that brought about the appellant's premature filing herein are that he and the appellant, Hank Bailey, jointly appealed their convictions obtained in a joint trial. The Court of Appeals reversed as to both appellants, by an unpublished opinion, following which the State of Indiana filed a petition for rehearing. Said petition for rehearing was denied as to the appellant, Hank Bailey, but granted as to the petitioner herein, and his conviction was affirmed.
The Court of Appeals having in part denied the previous petition for rehearing and there being no prior interpretation of Appellate Rule 11(B) with respect to the requisite denial of a petition for rehearing under such circumstances, counsel for the petitioner was understandably reluctant to rely upon his interpretation of the rule to the effect that the time allowed for the filing of a petition to transfer, as to this petitioner, would not commence to run until such time as the Court of Appeals denied his motion for rehearing.
The ruling of the Court of Appeals, granting the petition of the State as to the petitioner herein and denying it as to his co-appellant, in effect severed the appeal. The State of Indiana, if it desired our review of the denial of its petition for rehearing as to the co-appellant, would have been required to file for the same within twenty days from the adverse ruling. The petitioner, however, although he has been adversely affected by a ruling upon a petition for rehearing, has not had a denial of such a petition. This interpretation is consistent with our recent change in Appellate Rule 11(B)(8) permitting a petition for rehearing upon the grant of a petition for rehearing while continuing to preclude the filing of a petition for rehearing following the denial of such a petition.
GIVAN, C. J., and DeBRULER, HUNTER and PIVARNIK, JJ., concur.