State Ex Rel. Curry v. DAVIS, ETC.

251 Ind. 504 (1968)

242 N.E.2d 512

STATE OF INDIANA EX REL. CURRY v. JOHN T. DAVIS, JUDGE OF THE MARION CRIMINAL COURT, DIVISION ONE.

No. 1168S194.

Supreme Court of Indiana.

Filed December 17, 1968.

*505 Donald F. Foley, Indianapolis, for Relator.

Noble R. Pearcy, Prosecuting Attorney, Stanley B. Miller, Deputy Prosecuting Attorney, Indianapolis, for Respondent.

PER CURIAM.

Relator herein was arrested December 13, 1967; on December 14, 1967, an affidavit by the prosecutor was filed; on December 19, 1967, an additional affidavit was filed; on December 29, 1967, a writ of habeas corpus, filed by the defendant, was heard in the Criminal Court and denied. On May 8, 1968, an indictment was returned charging relator with conspiracy to utter a false and fraudulent instrument. All this time the relator remained in jail, at first represented by William Erbecker until May 8, 1968, when he was succeeded by the present attorney, Donald F. Foley. On June 5, 1968, relator filed motion for a separate trial. On June 26, 1968, a motion to discharge was made before Judge Davis on the ground that relator had been in custody for more than six months from the date of the affidavit, which was overruled. A second motion to discharge was made on July 22, 1968, and again overruled on September 3, 1968.

The relator is still in custody without trial, and all parties concede that he has remained in custody since June 5, 1968, the last date a motion was filed by the relator for a separate trial. Rule 1-4D is operative, therefore, since the accused should be given a trial within six (6) months of the date the criminal charge is filed against him or the date of arrest, whichever is later, and it is patent that six (6) months has passed since that time, considering all the facts in this case.

The alternative writ should therefore be made permanent, and the relator discharged from the custody of the Marion County jail.

NOTE. Reported in 242 N.E.2d 512.