from the Ripley Superior Court Trial Court Cause No.
69D01-1512-F6-152 The Honorable Darrell M. Auxier, Special
Attorneys for Appellant Curtis T. Hill, Jr Attorney General
Ellen H. Meilaender Supervising Deputy Attorney General
Attorney for Appellee Laura Sorge Fattouch Sorge Law Firm,
LLC Lawrenceburg, Indiana
Vaidik, Chief Judge.
With some exceptions, Criminal Rule 4(C) guarantees a
defendant the right to stand trial within one year of arrest
or the date charges are filed, whichever is later. If, during
the one-year period, the trial court sets a trial date beyond
the one-year period, the defendant is obligated to object in
time for the court to reset the trial for a date within the
one-year period, otherwise he acquiesces to the date. When a
defendant fails to object timely, he cannot then move for
discharge under Rule 4(C) when the one-year period expires.
In this case, 20 days before the one-year period was to
expire, the court held a pretrial conference and set
Myers's trial for a date beyond the one-year period.
Myers did not object. Nevertheless, shortly after the period
had expired, Myers moved for discharge under Rule 4(C), which
the trial court granted. The State appeals and argues that by
failing to object during the one-year period, Myers
acquiesced to the trial date and waived his motion for
discharge. We agree and reverse and remand for further
and Procedural History
On December 3, 2015, the State charged Myers with three
counts of drunk driving. As a result of numerous delays, some
of which were attributable to Myers, the case was still
pending in 2017. On May 26, 2017, the trial court held a
pretrial conference at which a trial date was to be set. As
of that date, 20 days remained in the one-year period under
Rule 4(C)-that is, the State had until June 15 to bring Myers
to trial. But when the trial court asked if there
was any Rule 4(C) issue, neither attorney raised any such
concern. The trial was then scheduled for November 14, 2017,
without objection from either side.
On June 23, after the one-year period had expired, Myers
filed a motion for discharge under Rule 4(C), explaining:
At the May 26, 2017 telephonic pretrial, Defense Counsel had
not completed an assessment of the Criminal Rule 4[(C)]
issue. Following a conversation with the State, Defense
Counsel began reviewing the timeline. Only on June 22, 2017
did Defense Counsel complete his calculations and determine
that a Criminal Rule 4[(C)] issue existed.
App. Vol. II p. 109. A hearing was held on the motion, and
the State argued that Myers had acquiesced to the November
2017 trial date by not objecting when that date was set at
the pretrial conference. Myers's attorney disagreed and
reiterated that, as of May 26, he "didn't know that
there was a CR 4 issue . . . ." Tr. Vol. II p. 68. He
added that June 22 "was the date that I put the math
together" and that he did not "believe that there
was any unreasonable delay in sitting down and doing the
calculation" on that day. Id. The trial court
agreed that the motion was "early enough, "
id. at 69, and ordered Myers discharged.
The State now appeals.