Opinion
No. 30,409.
Filed January 31, 1966.
APPEAL — Pleading and Practice — Motion for New Trial — Failure to Rule — Amended Motion for New Trial. — Where motion for new trial was timely filed and thereafter amended motion for new trial was filed late and the latter ruled upon, there was no question presented on appeal as the only motion which could be considered on appeal was the motion timely filed which was not ruled upon. Section 9-1903 of Burns' Ann. Stat.
From the St. Joseph Superior Court, No. 1, E. Spencer Walton, Judge.
Defendant appeals from overruling of amended motion for new trial filed more than thirty days after sentence.
Dismissed with instructions.
Edward V. Minczeski, of South Bend, for appellant.
Edwin K. Steers, Attorney General, and Frederick J. Graf, Deputy Attorney General, for appellee.
Appellant was charged by affidavit with the crime of Robbery and Inflicting Injury with a Deadly or Dangerous Weapon. Trial was had by jury resulting in a verdict of guilty; sentence was thereafter imposed consistent with the verdict.
Thereafter appellant petitioned for the appointment of pauper counsel to represent him in the preparation and filing of a Motion for New Trial, and if necessary in perfecting an appeal to this court. The petition was granted the same day it was filed.
Thereafter, on June 15, 1962, appellant within time, filed his original Motion for a New Trial. The appellant then on September 19, 1962, more than thirty days after sentence (actually 125 days after the rendition of the verdict) filed his Amended Motion for a New Trial. The court ruled on the "Amended Motion," denying the same.
The record discloses that the original motion for a new trial has never been ruled on. The appellee, in the argument section of its brief, urges that "[s]ince the `Amended Motion for New Trial', upon which Appellant's first specification of error is predicated was not filed within the time fixed by Burns' § 9-1903, supra, there is nothing before this Court as to the matters urged in the `Amended Motion for New Trial'." Beck v. State (1961), 241 Ind. 237, 170 N.E.2d 661; Murley, Conklin v. State (1960), 240 Ind. 655, 168 N.E.2d 205; Anderson v. State (1950), 228 Ind. 491, 93 N.E.2d 201.
We are of the opinion appellee's contention should be sustained. The amended motion being filed too late does not take out the original motion and the ruling should be made on the original motion. Kallas v. State (1949), 227 Ind. 103, 83 N.E.2d 769.
Where the amended motion for a new trial is filed after the time limit only the original motion may be considered. Beck v. State (1961), 241 Ind. 237, 170 N.E.2d 661; Martin v. State (1957), 236 Ind. 524, 141 N.E.2d 107. See also: F.W. H. Ind. Tr. App. Pract., § 1818.
The appeal is dismissed and this cause is remanded to the trial court with instructions to rule upon the original Motion for New Trial filed therein on June 15, 1962.
NOTE. — Reported in 213 N.E.2d 469.
Myers, C.J. and Arterburn, J., concur. Achor and Rakestraw, JJ., not participating.