Kirby v. State

Indiana Court of Appeals

Kirby v. State

619 N.E.2d 967, 1993 Ind. App. LEXIS 1072, 1993 WL 338455

CourtIndiana Court of Appeals

DecidedSeptember 9, 1993

DocketNo. 49A05-9305-CR-182

StatusPublished

Cited by3 cases

This text of 619 N.E.2d 967 (Kirby v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kirby v. State, 619 N.E.2d 967, 1993 Ind. App. LEXIS 1072, 1993 WL 338455 (Ind. Ct. App. 1993).

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Opinion

BARTEAU, Judge.

Kevin L. Kirby entered a plea agreement admitting his guilt to thirty-four (84) counts of child molesting. Thereafter, Craig O. Wellnitz, Master Commissioner of Marion County Superior Court, Criminal Division III, conducted a guilty plea hearing, accepted the plea agreement and sentenced Kirby. Wellnitz apparently acted as a Master Commissioner, since there is nothing in the record to indicate that he had been appointed a special judge or judge pro tem to conduct the guilty plea hearing, sentence Kirby, or execute the abstract of judgment. Further, the regular judge of the court, the Honorable John R. Barney, did not validate the actions of his commissioner. As we held in Rivera v. State (1992), Ind.App., 601 N.E.2d 445:

[A] commissioner acts as an instrumentality to inform and assist the court; only the court has authority to make final orders or judgments, and the decision of a commissioner is a nullity from which no appeal can be taken.

[968]*968Id. at 446. Because Wellnitz had no authority to enter a final appealable judgment, none exists. We therefore must dismiss the appeal and defendant is ordered discharged from the custody of the Department of Corrections and remanded to the custody of the Marion County Sheriff.

RUCKER and HOFFMAN, JJ., concur.

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BARTEAU, Judge.

Kevin L. Kirby entered a plea agreement admitting his guilt to thirty-four (84) counts of child molesting. Thereafter, Craig O. Wellnitz, Master Commissioner of Marion County Superior Court, Criminal Division III, conducted a guilty plea hearing, accepted the plea agreement and sentenced Kirby. Wellnitz apparently acted as a Master Commissioner, since there is nothing in the record to indicate that he had been appointed a special judge or judge pro tem to conduct the guilty plea hearing, sentence Kirby, or execute the abstract of judgment. Further, the regular judge of the court, the Honorable John R. Barney, did not validate the actions of his commissioner. As we held in Rivera v. State (1992), Ind.App., 601 N.E.2d 445:

[A] commissioner acts as an instrumentality to inform and assist the court; only the court has authority to make final orders or judgments, and the decision of a commissioner is a nullity from which no appeal can be taken.

[968]*968Id. at 446. Because Wellnitz had no authority to enter a final appealable judgment, none exists. We therefore must dismiss the appeal and defendant is ordered discharged from the custody of the Department of Corrections and remanded to the custody of the Marion County Sheriff.

RUCKER and HOFFMAN, JJ., concur.

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Bluebook (online)

619 N.E.2d 967, 1993 Ind. App. LEXIS 1072, 1993 WL 338455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirby-v-state-indctapp-1993.

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