Nelson v. State

295 N.E.2d 811, 260 Ind. 366, 1973 Ind. LEXIS 536

• Court: Indiana Supreme Court
• Decided: May 14, 1973
• Docket: No. 668S101
• Status: Published

Opinion

Arterburn, C.J.

Appellant was convicted of burglary and theft in separate causes in the Washington Circuit Court, Cause No. 5067 and Cause No. 5068 were consolidated for trial, on November 10, 1967. A praecipe was filed with the Clerk of that Court on March 21, 1968, for a transcript for the purpose of an appeal. From time to time thereafter appellant was granted extensions of time for the purpose of securing a transcript of the evidence and a record for appeal. These were based upon the delay of the court reporter and finally upon a showing that “a malfunction of the recording equipment during the course of the trial” resulted in a failure to record all the evidence properly. The last extension of time was granted to June 24, 1970. In the meantime, appellant has been at liberty under a $20,000 bond pending the outcome of this appeal.

Appellant has filed what is entitled “Motion for a Belated Motion for a New Trial” and states that his only remedy can be a post conviction remedy or that we direct a new trial be granted.

It is our opinion that whether or not appellant is entitled to a new trial should be the subject matter of a post conviction remedy and should not be determined by this Court granting a new trial without further showing of error.

This appeal, therefore, upon the admission of the appellant that he can not procure a full and complete record of the evidence for this appeal, is dismissed and appellant is authorized to proceed through a post conviction remedy without prejudice as to time for such relief as appellant may be entitled.

Note.—Reported in 295 N. E. 2d 811.