Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before FILED
any court except for the purpose of Feb 07 2012, 8:34 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN T. WILSON GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
ANDREW R. FALK
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHRISTOPHER SHORT, )
)
Appellant-Defendant, )
)
vs. ) No. 48A05-1107-CR-362
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Thomas Newman, Jr., Judge
Cause No. 48D03-1101-FB-10
February 7, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Christopher Short brings this interlocutory appeal from the trial court’s denial of
his motion for discharge pursuant to Indiana Criminal Rule 4(B). Short raises a single
issue for our review, namely, whether the trial court abused its discretion when it denied
his motion for discharge. We hold that Short waived his appeal of this issue and,
therefore, we affirm the trial court’s judgment.
FACTS AND PROCEDURAL HISTORY
On January 4, 2011, the State charged Short with burglary, as a Class B felony,
and arson, as a Class B felony. At his initial hearing that same day, Short requested a
speedy trial pursuant to Indiana Criminal Rule 4(B). The court acknowledged Short’s
motion, but, on January 7, the court scheduled Short’s trial for May 17, 2011, beyond the
seventy-day requirement of Criminal Rule 4(B).
At no time did Short object to the court scheduling his trial beyond the seventy-
day requirement. Instead, on January 26 Short, who was represented by counsel,
tendered to the court a second, pro se motion for speedy trial. The court refused the
document for failure of service and forwarded it to Short’s counsel. Over the course of
the next several months, Short filed various pro se motions to either terminate his
representation or to withdraw his requests for such termination. Eventually, the court
removed Short’s counsel and appointed new counsel. The court then rescheduled Short’s
trial for October 25, 2011, due to court congestion.
On June 1, the court held a hearing regarding the status of Short’s counsel, and at
that hearing Short orally moved to be discharged under Criminal Rule 4(B). The trial
2
court denied Short’s motion and certified its order for interlocutory appeal, which we
accepted.
DISCUSSION AND DECISION
Short contends that his speedy trial rights have been violated. The Sixth
Amendment to the United States Constitution and Article I, Section 12 of the Indiana
Constitution both protect the right to a speedy trial. The right to a speedy trial is a
“fundamental principal of constitutional law” that has long been zealously guarded.
Castle v. State, 237 Ind. 83, 143 N.E.2d 570, 572 (1957). This court is mindful that, in
order for the meaning of the rule not to be eviscerated, it is essential that courts honor
requests made for speedy trials by scheduling trial dates within the time prescribed by the
rule. McKay v. State, 714 N.E.2d 1182, 188 (Ind. Ct. App. 1999). And Indiana Criminal
Rule 4(B) provides that a criminal defendant held in jail must be tried within seventy
calendar days if he moves for speedy trial.
However, “[i]t is well established that a defendant . . . must object, at his earliest
opportunity, to a trial setting that is beyond the seventy-day time period” of Indiana
Criminal Rule 4(B). Hill v. State, 777 N.E.2d 795, 797-98 (Ind. Ct. App. 2002). If an
objection is not timely made, the defendant is deemed to have acquiesced to the later trial
date. Hampton v. State, 754 N.E.2d 1037, 1039 (Ind. Ct. App. 2001), trans. denied. The
defendant’s obligation to call to the trial court’s attention a trial date that had been set
outside the time frame allowed by Criminal Rule 4(B) is recognized because the purpose
of the rule is to assure early trials, not discharge defendants. Id.
3
Here, Short made his initial speedy trial request on January 4, 2011. Three days
later, the court scheduled Short’s trial for May 17, 2011, outside the seventy-day window
required by Criminal Rule 4(B). But Short never objected to that trial date. Short does
not contend on appeal that he was unaware of the trial setting. Instead, Short asserts only
that his January 26 motion, in which Short reiterated his request for a speedy trial but,
again, did not object to the court’s established trial date, demonstrated that he did not
acquiesce in the trial date.
We are not persuaded by Short’s argument. Rather than object at the earliest
opportunity, Short waited almost three weeks and simply filed another request. That
second request did not state that Short objected to the trial date, and Short’s argument to
the contrary on appeal is a misplaced attempt to circumvent the waiver rule.
In sum, we hold that Short did not timely object to the court’s initial date for his
jury trial and, as such, he waived his rights under Criminal Rule 4(B). Thus, we affirm
the trial court’s judgment.
Affirmed.
ROBB, C.J., and VAIDIK, J., concur.
4