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01/14/88 JOE D. SLAUGHTER v. STATE INDIANA

Filed: January 14, 1988.

JOE D. SLAUGHTER, APPELLANT (DEFENDANT BELOW)
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM THE MARION COUNTY MUNICIPAL COURT ROOM NO. 6, THE HONORABLE JOHN D. DOWNER, JUDGE, CAUSE NO. A086-699 & B086-699.

Shields, P.j. Staton, J., Concurs and Sullivan, J., Concurs.

Author: Shields

SHIELDS, P.J.

Joe D. Slaughter appeals his criminal conviction of operating a vehicle while intoxicated with a prior conviction for the same offense[Footnote 1] and being an habitual substance offender.[Footnote 2] Slaughter also appeals adverse judgments for the infractions of driving without a valid license,[Footnote 3] and making unsafe lane movements.[Footnote 4]

We affirm in part and reverse in part.

Charges were filed against Slaughter on August 25, 1986. On December 1, 1986, Slaughter filed a written waiver of jury trial with the court. On December 22, 1986, Slaughter filed a verified petition for removal with the United States District Court in the Southern District of Indiana. On the day of his state court trial, December 23, 1986, Slaughter filed a notice of removal with the clerk and presented the notice to the trial Judge. The trial Judge proceeded with the trial over defense counsel's objection. On December 23, 1986, at the Conclusion of the trial, the trial court entered judgment against Slaughter on the infractions. The trial court also entered findings that Slaughter was guilty of operating a vehicle while intoxicated with a prior conviction, and that he had two prior convictions involving substance abuse.[Footnote 5] The trial court did not, however, enter judgment on these counts.

The federal court dismissed the removal petition and remanded the case to the trial court on January 15, 1987. On January 16, 1987, the trial court entered a judgment of conviction and sentenced Slaughter as an habitual substance offender.

The two issues Slaughter raises on appeal are:

(1) Whether the trial court had jurisdiction after it was notified of the petition for removal to federal court, and

(2) Whether the trial court erred in failing to determine Slaughter's written waiver of a jury trial was knowing, intelligent and voluntary.

Slaughter argues that once the removal petition was filed with the federal court and notice was given to the trial court, the trial court lacked jurisdiction to proceed with his trial until the cause was remanded.[Footnote 6] 28 U.S.C. § 1446 (1987 Supp.) sets forth the procedures for removal of a cause from state to federal court:

"(a) a defendant . . . desiring to remove any civil action or criminal prosecution from a state court shall file in the district court of the United States for the district and division within which such action is pending a verified petition. . . .

(c) . . .

(3) The filing of a petition for removal of a criminal prosecution shall not prevent the state court in which such prosecution is pending from proceeding further, except that a judgment of conviction ...


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