Gregg v. State

286 N.E.2d 692, 153 Ind. App. 206, 1972 Ind. App. LEXIS 731

• Court: Indiana Court of Appeals
• Decided: September 1, 1972
• Docket: No. 472A187
• Status: Published

Opinions

Sullivan, J.

Defendant-appellant, Samuel Gregg, was charged with Operating a Vehicle While Under the Influence of Liquor, No Operator’s License, Fleeing a Police Officer, and Reckless Driving, and on November 20, 1970 in Marion County Municipal Court was apparently¹ found guilty of each such offense and was sentenced to the Marion County Jail for a period of thirty days and was fined $300.00.

Defendant, pursuant to Ind. Ann. Stat. (Burns 1972 Supp.) § 4-5811 as it existed prior to May 1, 1971, sought judicial review of those convictions. On April 1, 1971 a hearing was held in Marion County Criminal Court, Room 1, at which time defendant, who was also physically present, appeared by counsel. At that hearing, the matters under review were argued by counsel and at the conclusion of said hearing the court below made the following statement and entered same of record:

“This matter is continued until one week from today, April 8th, nine thirty a.m.”

On April 8 the following matters were entered of record:

“THE COURT: The State against Samuel Gregg. This matter was set for judicial review on April first, 1971, and it was continued until this morning for ruling, the issues having been formed, and it looks like the defendant and his attorney are not here, simply are not here.” (Emphasis supplied)

* * *

“THE COURT: No, I am not going to continue it. It’s an. appeals case, it was set in open court, the defendant was standing right here when I set it, and neither he nor his attorney is here. The clerk will call the defendant three times.”

* * *

“THE COURT: The defendant and surety having each been audibly called three times and answering not, the bond is ordered forfeited, statutory notice to issue, rearrest warrant to issue. The defendant failing to appear, the appeals, and each of them, are ordered dismissed. The defendant is remanded to custody of the Sheriff of Marion County, to be remanded to the Municipal Court of Marion County for execution of judgment of sentence heretofore ordered. These cases, and each of them, are remanded to the Municipal Court of Marion County, and the defendant’s bond is set in the amount of five thousand dollars.”

On April 16 defendant filed a Motion to Reinstate the Appeal in Marion County Criminal Court One. The Motion was overruled.

We treat herein only the following specification of error:

1. The Marion County Criminal Court erred in dismissing the appeal from the Marion Municipal Court.

It has been traditionally held that inherent in the powers of a reviewing court is the authority to dismiss any appeal which is not diligently prosecuted. Deckard v. State (1960), 241 Ind. 338, 170 N. E. 2d 424. However, as hereinbefore noted, the record shows that the hearing of April 1 was continued not for further evidence but for ruling. Furthermore, notwithstanding the fact that the Criminal Court “dismissed” defendant’s appeal, the record entry clearly shows that the Criminal Court had already considered all of the evidence before it.² Said dismissal reads in part as follows:

“* * * and the Court having listened to the recording of the testimony heard below and having considered all other evidence in the record of this appeal * * *”

The defendant-appellant had therefore prosecuted his appeal to conclusion insofar as he was able. The fact that neither he nor his counsel was present upon the date set for ruling, does not constitute abandonment of the appeal or failure to diligently prosecute same.³ On April 8, the date of dismissal, the sole aspect of the proceedings not yet completed, was the rendering of the review court’s decision.

Accordingly, we now hold that it was error for the Marion Criminal Court to dismiss the appeal below.

We are unable to determine whether the defendant was prejudiced by this erroneous dismissal since the record before us does not contain the evidence considered by the reviewing court. We may not therefore presume whether the reviewing court would have affirmed the convictions.

The order dismissing the appeal is reversed, and the cause is remanded to the Marion County Criminal Court, Room 1 with instructions to reinstate the appeal and for further proceedings, not inconsistent herewith.

Buchanan, P. J., concurs; White, J., concurs with opinion.

1 . The record before us does not reflect the judgments entered by the Municipal Court except insofar as the reviewing judge, defendant’s counsel, and the Deputy Prosecutor discussed the judgments and sentences at the time of the judicial review hearing.

2 . We note here that the procedure applicable to judicial review on both April 1 and April 8, 1971 specifically permitted for reception of additional “newly discovered” evidence. Acts 1969, Ch. 323, § 3 as found in Ind. Ann. Stat. §4-5811 (Burns 1971 Supp.). At no time, however, during the April 1 hearing was newly discovered evidence tendered nor was there even any hint that “newly discovered” evidence existed or that such would be offered on the April 8 date.

3 . We are not here confronted with a failure of the defendant-appellant or his counsel to appear on the April 1 hearing date at which time oral argument was scheduled, nor with whether such failure would constitute abandonment of the appeal so as to authorize dismissal thereof. We merely note, however, that the duty of a reviewing court to decide an appeal upon the merits is not obviated by an appellant’s failure to appear' for oral argument. See Town of Walkerton v. Fiwek (1963), 134 Ind. App. 416, 189 N. E. 2d 110.