State v. Lee

331 N.E.2d 50 (1975)

STATE of Indiana, Appellant (Plaintiff below), v. Charles W. LEE, Sr., Appellee (Defendant below).

No. 1-874A128.

Court of Appeals of Indiana, In Banc.

July 17, 1975.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Asst. Atty. Gen., Indianapolis, for appellant.

Rice & VanStone, William E. Weikert, Evansville, for appellee.

On Petition for Rehearing

LYBROOK, Judge.

Since our original opinion in this matter, 47 Ind.Dec. 257, 328 N.E.2d 745, Lee has filed (1) a motion to dismiss alleging lack of jurisdiction, and (2) a petition for rehearing alleging lack of jurisdiction and that our holding contravened a ruling precedent of the Supreme Court.

Relying upon IC 1971, XX-X-XX-X, Ind. Ann. Stat. § 9-2304 (Burns Supp. 1974), Lee maintains that jurisdiction of State's *51 appeal from his acquittal lies solely with the Supreme Court:

"9-2304 IC XX-X-XX-X. Appeal by state. Appeals to the Supreme Court may be taken by the state in the following cases. First. From a judgment for the defendant, on quashing or setting aside an indictment or information, or sustaining a plea in abatement. Second. From an order or judgment for the defendant, upon his motion for discharge because of delay of his trial not caused by his act, or upon his plea of former jeopardy, presented and ruled upon prior to trial. Third. From a judgment of the court arresting judgment. Fourth: Upon a question reserved by the state."

(Emphasis added.)

Lee's argument however, overlooks the rules of appellate procedure which govern this court's jurisdiction. Notwithstanding any law, statute, or rule providing for a direct appeal to the Supreme Court, all appeals except those few enumerated in Ind. Rules of Procedure, Appellate Rule 4(A), are to be taken to this court. AP. 4(B). Inasmuch as State's appeal did not fall within one of the limited categories of AP. 4(A), jurisdiction lay in this court. Lee's motion to dismiss therefore is overruled.

Having disposed of the jurisdictional contention, we need only address Lee's argument in his petition for rehearing that our opinion contravened the case of State v. Robbins (1943), 221 Ind. 125, 46 N.E.2d 691, by not limiting our opinion to questions of law for the guidance of inferior courts. We vigorously disagree with such an assertion and suggest that petitioner once again reread our decision. It does not in any manner amend, modify, affect or reverse the judgment rendered by the Vanderburgh Circuit Court in this case. It neither suggests nor implies that Lee is subject to re-trial, and such an attempt by the State would raise serious constitutional questions. Rather, our holding falls within the fourth clause of IC 1971, XX-X-XX-X, supra, and is in harmony with Robbins.

Lee's petition for rehearing is denied.

ROBERTSON, C.J., and LOWDERMILK, J., concur.