State v. Proctor

Indiana Court of Appeals

State v. Proctor

471 N.E.2d 707, 1984 Ind. App. LEXIS 3102

CourtIndiana Court of Appeals

DecidedDecember 4, 1984

Docket1-784A161

StatusPublished

Cited by5 cases

This text of 471 N.E.2d 707 (State v. Proctor) 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.

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State v. Proctor, 471 N.E.2d 707, 1984 Ind. App. LEXIS 3102 (Ind. Ct. App. 1984).

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Opinion

ROBERTSON, Judge.

The plaintiff-appellant State is appealing the granting of a motion to dismiss charges pending against the defendant-appellee Proctor. The basis of the dismissal is double jeopardy.

Proctor was initially charged with several offenses and over a period of time substantial procedural skirmishing occurred. At a pre-trial conference the parties agreed and stipulated that the trial judge was to view a video tape made of Proctor at the time of his arrest. The parties also agreed that the trial judge was to view the tape prior to the bench trial, which he did. The State subsequently dismissed the charges and then refiled them. At this time Proctor moved for dismissal based, in part, on the theory that jeopardy had attached when the trial judge had viewed the video. tape. The motion was granted and this appeal follows.

While the State suggests that whether or not jeopardy has attached is a question that should be viewed with flexibility, citing United States v. Vaughan, (1983, 9th Cir.) 715 F.2d 1373, the fact of the matter is that in this case the taking of evidence in a non-jury case had commenced, hence jeopardy attached. Serfass v. United States, (1975) 420 U.S. 377, 93 S.Ct. 1055, 43 L.Ed.2d 265.

Judgment affirmed.

NEAL, P.J., and RATLIFF, J., concur.

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ROBERTSON, Judge.

The plaintiff-appellant State is appealing the granting of a motion to dismiss charges pending against the defendant-appellee Proctor. The basis of the dismissal is double jeopardy.

Proctor was initially charged with several offenses and over a period of time substantial procedural skirmishing occurred. At a pre-trial conference the parties agreed and stipulated that the trial judge was to view a video tape made of Proctor at the time of his arrest. The parties also agreed that the trial judge was to view the tape prior to the bench trial, which he did. The State subsequently dismissed the charges and then refiled them. At this time Proctor moved for dismissal based, in part, on the theory that jeopardy had attached when the trial judge had viewed the video. tape. The motion was granted and this appeal follows.

While the State suggests that whether or not jeopardy has attached is a question that should be viewed with flexibility, citing United States v. Vaughan, (1983, 9th Cir.) 715 F.2d 1373, the fact of the matter is that in this case the taking of evidence in a non-jury case had commenced, hence jeopardy attached. Serfass v. United States, (1975) 420 U.S. 377, 93 S.Ct. 1055, 43 L.Ed.2d 265.

Judgment affirmed.

NEAL, P.J., and RATLIFF, J., concur.

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471 N.E.2d 707, 1984 Ind. App. LEXIS 3102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-proctor-indctapp-1984.

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