STATE of Indiana On the Relation of Robert L. JOHNSON, Relator,
v.
The Honorable Harold H. KOHLMEYER, Jr. and Marion Criminal Court, Division Three, Respondents.
No. 873S163.
Supreme Court of Indiana.
October 4, 1973. Rehearing Denied November 21, 1973.Ferdinand Samper, Sr., Samper & Samper, Indianapolis, for relator.
David L. Millen, Marion County Deputy Prosecutor, Indianapolis, for respondents.
Rehearing Denied November 21, 1973. See 303 N.E.2d 661.
ORIGINAL ACTION
GIVAN, Justice.
The relator has filed a petition for a writ of mandate and prohibition in forma pauperis wherein he seeks to prohibit respondents from trying him and seeks a mandate and asks that respondents be mandated to discharge him from the cause captioned State of Indiana v. Robert L. Johnson, cause number CR72 801C.
The parties have agreed to a stipulation of facts which reveals the following:
Since August, 1972, relator has been incarcerated in the Johnson County Jail under charges of violation of the Offenses Against Property Act and for unlawful use of a corporate name.
On September 26, 1972, relator was indicted by the Marion County Grand Jury for theft in the cause from which he herein seeks relief. A capias was issued in the cause in question and served on the relator *519 in the Johnson County Jail by the Sheriff of Johnson County. No return of the capias was filed until May 16, 1973. One month earlier, on April 16, 1973, relator filed a verified motion for discharge pursuant to Ind. Rules of Proc., Rule CR. 4 (A).
On May 7, 1973, respondent overruled relator's motion and set arraignment for May 16, 1973. On that date relator moved respondent to reconsider his ruling on the motion to discharge. On June 1, 1973, the motion to reconsider was overruled and the cause was set for trial.
Relator argues that he should be discharged in cause number CR72 801C in respondent court for the reason that he was incarcerated for more than six months without trial through no fault of his own.
Rule CR. 4(A) reads as follows:
"(A) Defendant in jail. No defendant shall be detained in jail on a charge, without a trial, for a continuous period embracing more than six [6] months from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge (which ever is later); except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall make such statement in a motion for continuance not later than ten [10] days prior to the date set for trial, or if such motion is filed less than ten [10] days prior to trial, the prosecuting attorney shall show additionally that the delay in filing the motion was not the fault of the prosecutor."
This rule has been interpreted by this Court to be applicable only when the defendant is incarcerated or under recognizance on the charge in question. Napiwocki v. State (1971), Ind., 272 N.E.2d 865, 26 Ind.Dec. 497; Finton v. State (1963), 244 Ind. 396, 193 N.E.2d 134, 2 Ind.Dec. 214.
In the case at bar relator's incarceration related solely to charges against him in the Johnson Circuit Court and had no connection with the indictment filed in Marion County.
The facts in this case disclose that the cause in question was set for trial well within six months after relator was brought to Marion County. Thus, relator is not entitled to discharge under Rule CR. 4(A).
Petition for writ of mandate and prohibition is, therefore, denied.
ARTERBURN, C.J., and HUNTER and PRENTICE, JJ., concur.
DeBRULER, Justice (dissenting with statement):
I continue to be convinced of the correctness of my dissent in Napiwocki v. State (1971), Ind., 272 N.E.2d 865, 26 Ind.Dec. 497, on this point, and therefore vote to grant the writ.