Opinion
Opinion Superseded 310 N.E.2d 552.
Page 515
J. E. Holwager, Holwagers&sHarrell, Beech Grove, for appellant.
Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for appellee.
ON PETITION FOR REHEARING
SULLIVAN, Judge.
Heretofore on September 4, 1973 by opinion upon the merits of Utterback's appeal from his conviction of second degree burglary, we ordered appellant discharged for the reason that the State had not tried him within fifty (50) days following his motion for early trial as required by CR. Rule 4(B) and that there was no showing of record that such delay was occasioned by 'congestion of the court calendar'. Utterback v. State (1973 Ind.Ct.App.) 300 N.E.2d 688. We said in this regard:
'It is readily apparent that defendant's trial was conducted more than fifty judicial days following the filing of the Motion for Speedy Trial. The record further discloses that appellant was incarcerated during the crucial period; that he sought no continuances nor that the delay was in any way attributable to him. The record does not reflect, nor does the State argue that the failure to try appellant within the requisite period was occasioned by congestion of the court calendar. Compare Harris v. State (1971) 256 Ind. 464, 269 N.E.2d 537. The State contends only that appellant is estopped to claim refuge in Rule CR. 4(B) since he did not inform the court that the trial date was set in violation of said Rule.
We do not perceive the protections afforded by Rule CR. 4(B) to require a defendant to familiarize the prosecutor and the court with critical procedures. It is the responsibility of the State to prosecute and to prosecute properly. The appellant need not provide the instructional manual for the construction of his prison cell. Compare Arnold v. State (1973, Ind.Ct.App., 3rd District) 300 N.E.2d 135, which construes Rule CR. 11.
Judgment reversed with instructions to enter order discharging appellant from custody.'
Subsequent to our determination, the Indiana Supreme Court on September 17, 1973 decided Bryant v. State, Ind., 301 N.E.2d 179, wherein it was held that expiration of the six months referred to in Rule CR. 4(A) does not entitle a defendant to discharge unless the defendant objects at the earliest opportunity at or after setting of the trial date. See also Layton v. State (1973) Ind., 301 N.E.2d 633. Compare State ex rel. Dull v. Circuit Court of Delaware County (1973) Ind., 301 N.E.2d 519. We do not construe Rule CR. 4(B) to require a similar objection. Such would be redundant. The fifty (50) day period specified in Rule CR. 4(B) does not commence until after the defendant has taken affirmative action, i.e., requested an early trial. Such defendant cannot properly be said to have set a trap for the prosecution by failing to assert his rights as was the apparent rationale for the holding in Bryant v. State, supra. Furthermore, Rule CR. 4(B) specifically and in precise language requires discharge of a defendant who, having filed a motion for early trial, is not tried within fifty (50) days unless such delay is occasioned by the defendant himself or it is shown that the trial calendar is so congested as to prevent such early trial. Rule CR. 4(A) on the other hand does not contain such specific 'discharge' directive.
'(A) Defendant in jail. No defendant shall be detained in jail on a charge, without a trial, for a continuous period embracing more than six (6) months from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge (whichever is later); except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall make such statement in a motion for continuance not later than ten (10) days prior to the date set for trial, or if such motion is filed less than ten (10) days prior to trial, the prosecuting attorney shall show additionally that the delay in filing the motion was not the fault of the prosecutor.
Our decision upon the merits heretofore rendered was based upon what the State now belatedly asserts is not a true state of the record. The State has filed its petition for rehearing and its amended petition for certiorari, which are set forth in their entirety in order to give substance and dimension to our ruling and opinion herein:
'APPELLEE'S PETITION FOR REHEARING. The Appellee herein respectfully petitions this Honorable Court to grant a rehearing in the above-captioned cause, and in support of its petition shows the Court as follows:
1. That the Court, by Judge Sullivan, entered its decision reversing the judgment of the Marion Criminal Court, Division Four, on September 4, 1973.
2. That this Petition for Rehearing is timely filed within twenty (20) days of said decision, in compliance with the provisions of Appellate Rule AP. 11(A).
3. That the decision of this Court was based on the failure to bring the defendant to trial within fifty (50) judicial days following a Motion for Speedy Trial, and said decision is thus erroneous for the reason that the records of the trial court show that a congested court calendar prevented a jury trial within fifty (50) judicial days. The trial court record further shows that counsel for the defendant was aware of said congestion and further shows that said counsel was aware that August 7, 1972 was the earliest date on which trial by jury could be had (See Exhibit A attached hereto).
For reasons unknown to the Appellee, the aforementioned portion of the trial court record was not included in the Record of Proceedings presented to this Court by the Appellant. Upon being apprised of the existence of said record, the Appellee sought Certiorari for the Record so that this Court could be informed of the complete circumstances with respect to the basis for its decision. It is believed by the Appellee that the requested addition to the Record in this cause will create a basis for a contrary decision by this Honorable Court.
WHEREFORE, the Appellee prays that this Court grant a rehearing and reconsider this cause in light of the entire record.'
""AMENDED CERTIORARI FOR/ RECORD. The State of Indiana, by counsel, having previously filed its Certirari for the Record, now files its Amended Certiorari for Record in order to apprise the Court more specifically the nature of the requested addition to the Record.
The Court having reversed the trial court's judgment for reason that defendant was denied a speedy trial, it has now come to the attention of counsel for the State of Indiana that the trial court's calendar was so congested as to preclude trial by jury within fifty (50) judicial days. Counsel for the State of Indiana further has learned that the impossibility of trying the defendant within fifty (50) judicial days was made known to counsel for both parties in a hearing on Thursday, May 18, 1972 in the Marion Criminal Court, Division Four.
WHEREFORE, inasmuch as a complete record of the proceedings in the trial court would have shown a basis for different disposition of this cause by this Court, and inasmuch as the Appellant did not submit a complete record of the trial court proceedings, the State of Indiana prays that this Court order the Clerk of the Marion Criminal Court, Division Four to prepare and certify to this Court a full and complete transcript of the proceedings had in Cause Number CR 72-364-D on Thursday, May 18, 1972, said transcript to be made a part of the Record in this cause.'
The exhibit attached to the State's Petition for Rehearing reflects a colloquy which took place among and between respective counsel and the court. This colloquy clearly indicates that Judge Wilson, in setting the cause for trial beyond the fifty (50) days permitted by Rule CR. 4(B), did so because the court trial calendar did not permit an earlier certain setting.
In response to the State's Petition for Rehearing, appellant filed the following:
""RESPONSE TO APPELLEE'S PETITION/ FOR REHEARING. Appellant respectfully responds to Appellee's Petition for Rehearing and shows the Court as follows:
1. Appellant filed his Praecipe for Transcript of Entire Record on October 30, 1972, wherein the Clerk of the Criminal Court of Marion County was requested to prepare and certify a complete transcript of the entire record to be used on appeal of this cause to this honorable court.
2. Thereafter, on January 4, 1973, appellant filed the Bill of Exceptions containing the evidence with the Clerk of the Marion County Criminal Court, Division Four, after it had been examined, approved, signed and ordered filed by the trial Judge.
3. On January 30, 1973, appellant filed the Record of the Proceedings with the Clerk of the Supreme and Court of Appeals of Indiana, which said Record of Proceedings contained the certificate of the Official Reporter and the certificate of the trial Judge.
4. Appellant, in good faith and in dependence upon the record as supplied by the Clerk and the Official Reporter of the Marion Criminal Court, Division Four, prepared and filed the brief of the defendant-appellant on February 28, 1973.
5. Counsel for appellant was not trial counsel and was unaware the record as certified was incomplete. WHEREFORE, appellant prays that should this Court grant a rehearing in this cause, the appellant be permitted to file a supplemental brief based upon the omitted proceedings and that the appellant be granted thirty days in which to prepare and file such supplemental brief upon the omitted proceedings.'
Notwithstanding the willingness of appellant to submit the cause to redetermination upon rehearing, we are confronted with an insurmountable obstacle to the mutual request of the parties. The State has failed to show except by suggestion that the record upon which we rendered our decision was an incomplete or deficient record. The colloquy or proceeding which took place at the time that the trial date was fixed on May 18, 1972 has never yet been made a part of the record below insofar as is disclosed by the post-opinion filings by the State. The colloquy in question is accompanied only by a certification by the court reporter to the effect that it is a true and complete verbatim transcript of the proceedings held. It does not bear the requisite certification of the trial judge nor an indication that it was filed with the clerk of the court and thereby made a part of the record in the cause.
Rule AP. 7.2(C) authorizes this court, upon a petition for certiorari, to order the trial court to correct an omission and to certify and transmit a supplemental record. The purpose of this rule was enunciated in American States Insurance Co. v. State ex rel. Jennings (1972) Ind., 283 N.E.2d 529 wherein our Supreme Court directed this court to grant a petition for certiorari in order to correct the record and 'to consider the case on its merits'. The rule, however, does not contemplate such correction or addendum to the record after the cause has been determined upon the merits. Judicial pronouncements upon the subject, though antedating AP. 7.2(C) are deemed persuasive. In Board of Commissioners of Marion County v. Center Township (1886) 105 Ind. 422, 433-444, 7 N.E. 189, 190, the court noted:
'The principal ground upon which the rehearing is prayed for is, that the record of the cause does not speak the truth as to one matter of fact, upon which our opinion is largely rested in deciding the case in favor of such railway company.'
The court then held:
'We were not informed of any mistake of fact in the record, but we heard and decided the cause, with the belief and upon the supposition that the record before us, as it ought to have done, imported 'absolute verity.' Our decision of the cause, as presented by all the parties to the record, is adverse, and therefore is not satisfactory, to Center township. We are now asked, on behalf of such township, to grant a rehearing and a stay of proceedings in the pending appeal, until such time as the record below can be so corrected that it will 'speak the truth.' This court has always refused, and in cases of as much magnitude and importance as the case in hand (or more), to grant a rehearing in order that the record may be amended.'
And in the most recent decision which treats the subject in depth, Davidson v. Davidson (1950) 120 Ind.App. 253, 256, 91 N.E.2d 796, 797, the court in quoting from First Merchants National Bank v. Crowley (1943) 221 Ind. 682, 50 N.E.2d 918, held:
"It has not been the practice of this court to grant a rehearing that the record may be amended. Such a practice could not be allowed. It is not the practice in any court to allow a new trial or a rehearing, merely that the party may amend his pleadings and present the case in a new form. We should make little progress in the business on the docket of the court, should we allow such a practice."
Compare Hamp v. State (1973, Ind.Ct.App., 1st District) 301 N.E.2d 412, at footnote 1.
The legal principle enunciated in Davidson, supra, is not confined to civil appeals. Wilson v. State (1901) 156 Ind. 631, 60 N.E. 1086; Drake v. State (1896) 145 Ind. 210, 44 N.E. 188; State v. Dixon (1884) 97 Ind. 125. In the Drake decision upon rehearing, the basis for our ruling herein is contained in a quotation from Elliott upon Appellate Procedure:
"The rule is well settled that amendments will not be permitted after the decision on appeal. The Duty of parties is to see that the record is properly made up, and if they fail to move promptly in securing a correction, or (amendment, where) amendments (or corrections) are necessary to make a perfect record or fully present the questions, their complaint will not be heeded. It is incumbent upon the party desiring the amendment or corrections to take the necessary steps to secure it before the record is finally acted upon, and he must see that the officers of whom duties are required perform those duties."
While the criminal appeal cases hereinabove cited concerned attempts by a losing appellant to inject additional matter into the record upon rehearing, we conceive of no just premise which would permit application of a different and contrary rule in favor of the State.
We do not hereby imply any devious motives on the part of counsel for appellant who praeciped for the record since such praecipe requested preparation and certification of 'the entire record in the aboveentitled cause.'
The colloquy occurring at the time of the trial setting was essential to the State's position upon appeal. Perhaps, the State had reason to rely upon the certification of the reporter that her transcription included the entire record of proceedings below. The fact remains, however, that the record before us did not and does not now contain any matters relative to the trial setting other than the following:
'And afterwards to-wit: Thursday, May 18, 1972 being the 1972 Term of said Court, before the Honorable John B. Wilson, Jr., Judge Presiding thereof, the following further proceedings were had herein to-wit: State by Gary Peplay, Deputy Prosecutor; Defendant Utterback in person and by counsel, Harry Kremer.
Defendant requests early Jury trial. Granted. Set for Jury trial August 7, 1972 at 9:30 A.M.' (Tr. p. 12)
It is well settled that the trial court speaks only by its record. O'Malia v. State (1934) 207 Ind. 308, 192 N.E. 435. Accordingly, we are bound by the state of the record as it existed when the cause was determined upon its merits.
It is indeed unfortunate that the performances of the person or persons responsible for placing this appeal in such a posture as to permit complete and informed review, were so cursory as to result in the mandate of this court to discharge a defendant who otherwise was apparently fairly tried and convicted. It is also unfortunate that the dereliction of duty by the responsible person or persons, whether the court reporter, the appellant's counsel, or counsel for the State of Indiana, resulted in a strong implication of judicial unawareness on the part of the trial court as contained in our opinion of September 4. We do not view it within our prerogative, however, to permit the State an incomplete preparation of its case and thereafter, following determination of the cause, to belatedly add additional arguments.
When a record upon its face indicates a cause for discharge under Rule CR. 4(B), we deem it only the common-sense fulfillment of the appellate duty of the State to pause for thought and possible investigation as to the advisability of a petition for certiorari if such petition is necessary in order to adequately present the state's case upon appeal.
Our decision herein does not rest solely upon the failure of the record to timely reflect the full and complete proceedings below. Rule CR. 4(B) requires that before trial may be properly had more than fifty (50) days following a motion for early trial, the court calendar must not only be shown to be congested but as well that the 'prosecuting attorney (has filed) a timely motion for continuance.' Nothing in the record before us or in the State's amended petition for certiorari indicates such continuance request.
While the trial court apparently, as evidenced by the exhibit to the petition for rehearing, properly performed its responsibility in the setting of the trial date, neither the prosecutor, the court reporter nor appellate counsel for either party fully performed their respective obligations.
We therefore, albeit reluctantly, deny the State's petition for rehearing and its amended petition for certiorari.
BUCHANAN, P.J., and WHITE, J., concur.
(B) Defendant in jail--Motion for early trial. If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within fifty (50) judicial days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such fifty (50) judicial days because of the congestion of the court calendar. Provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule.'