Opinion
No. 28,145.
Filed January 24, 1946.
1. COURTS — Supreme Court — Jurisdiction — Mandate and Prohibition — Discretion of Lower Court Not Disturbed. — The Supreme Court cannot interfere with the discretion of a lower court by mandate, nor can it order that it act and find in a given way. p. 44.
2. CRIMINAL LAW — Coram Nobis — Trial — Return of Prisoner For Hearing — Discretion of Court. — A circuit court is not bound to enter an order for the return of a prisoner from prison so that he may appear in person and conduct a suit to set aside a judgment of conviction unless a proper showing is made which makes it imperative that he be returned, and such showing is addressed to the sound discretion of the court. p. 44.
3. CRIMINAL LAW — Coram Nobis — Trial — Presence of Relator Not Necessary. — The trial in a coram nobis proceeding may be on affidavits and with or without the presence of relator. p. 44.
4. CRIMINAL LAW — Coram Nobis — Nature of Proceeding — Proceeding Not a Continuation of Original Action. — A coram nobis proceeding is not a continuation of the original action, but is an attack upon its validity. p. 45.
5. MANDAMUS — Grounds — Right to File Motion for New Trial — Conviction on Plea of Guilty. — Where the entry of judgment of conviction followed the defendant's plea of guilty, defendant could not be harmed by his inability to file motion for a new trial or to perfect an appeal. p. 45.
6. MANDAMUS — Return of Prisoner for Trial of Coram Nobis Proceeding — Necessity for Return Not Sufficiently Shown. — Where, in an original action in the Supreme Court for a writ of mandate to compel a circuit court to order petitioner to be returned from prison in order that he might appear in person and conduct a suit in such court to set aside a judgment of conviction against him, petitioner failed to disclose the grounds upon which he based the request for his return, and failed to set out the substance of his petition for writ of error coram nobis whereby the judgment of conviction was sought to be set aside, the Supreme Court could not issue the writ of mandate, since petitioner failed to make a proper and sufficient showing as to the necessity for his return. p. 45.
7. MANDAMUS — Return of Prisoner For Trial of Coram Nobis Proceeding — Erroneous Ruling to be Corrected By Appeal. — If a circuit court erroneously refuses the request of a prisoner to be returned from prison in order that he might appear in person and conduct a suit to set aside a judgment of conviction against him, the error can be corrected on appeal to the Supreme Court. p. 45.
Original action by the State of Indiana, on the relation of Harold Vonderschmidt, against John W. Gerdink, as Special Judge of the Vigo Circuit Court, for a writ of mandate compelling respondent to grant an order that relator be returned from prison to the sheriff of Vigo County so that he could be present in the Vigo Circuit Court to conduct a suit pending therein to set aside the judgment of conviction.
Petition Denied.
Harold Vonderschmidt, pro se.
John R. Jett, and Thomas P. Gallagher, both of Terre Haute, for respondent.
In June 1944, the relator was charged with and arrested for the commission of a criminal act in Vigo County, Indiana. On the same day he entered a plea of guilty and judgment was entered that he be committed to the Indiana State Prison. From what is before us, we are able to determine neither the nature of the criminal act charged against the relator nor the extent of the sentence imposed upon him. He now petitions this court to issue a mandate against John W. Gerdink, Special Judge of the Vigo Circuit Court, commanding that the said special judge grant compulsory process and order that this relator be taken from the prison and delivered to the sheriff of Vigo County. It is the contention of the relator that it is the duty of this court to command the Special Judge of the Vigo Circuit Court to grant him the right to appear in person and conduct a suit now pending in that court wherein the relator is attempting to set aside the judgment of conviction.
We can mandate a circuit court only to compel the performance of some duty enjoined by law. § 3-2201, Burns' 1933. We can neither interfere with the discretion of a court nor order 1. that it act and find in a given way. State ex rel. Benson v. Superior Court (1933), 205 Ind. 464, 187 N.E. 203.
The circuit court is not bound to enter an order for the return of the relator unless a proper showing is made which makes it imperative that he be returned. Such showing is 2, 3. addressed to the sound discretion of the court. The trial in the coram nobis proceeding may be on affidavits and with or without the presence of the relator. In this action he has failed to disclose the grounds upon which he based the request for an order commanding his return to Vigo County. He has likewise failed to set out the substance of his petition for the writ of error coram nobis.
The relator asserts that the action pending is a continuation of the criminal case. This court has held that a coram nobis proceeding is not a continuation of 4. the original action, but is an attack upon its validity. State ex rel. Emmert v. Gentry (1945), 223 Ind. 535, 62 N.E.2d 860.
Further, he complains of the denial of the right to file a motion for a new trial and to appeal. There never was a trial, there could be no trial on a plea of guilty, and we cannot 5. see how the relator could be harmed by his inability to file such motion or to perfect an appeal, since he has plainly and openly stated that the entry of the judgment of conviction followed his plea of guilty to the crime charged.
If the relator has any reason for setting aside the judgment, it must be for some denial of a right prior to the entry of the judgment. Without doubt, upon a proper and sufficient showing, the relator would be returned for the trial, but this 6, 7. court cannot mandate the respondent to enter an order granting the relief sought. We could, on a proper showing, order the respondent to act in the matter, but we cannot dictate or control the fruit of that action. If the court erroneously refuses the request of the relator, such error can be corrected on appeal to this court.
Until it is shown that the judge refuses to perform some duty that is placed upon him by law, we cannot issue a writ of mandate against him.
The petition is therefore denied.
Note. — Reported in 64 N.E.2d 579.