State v. Monticello Developers, Inc.

DeBRULER, Justice,

dissenting.

Upon taking a second look at this case, I must also confess error. I overlooked the preliminary issue, identified in appellee's reply in opposition to petition for rehearing, of the State's authority to bring this appeal

*1113Appeals by the State are strictly limited to those authorized by statute. State v. Holland (1980), 273 Ind. 284, 403 N.E.2d 832. State v. Sierp (1973), 260 Ind. 57, 292 N.E.2d 245. The applicable statute is I.C. § 35-38-4-2 which reads as follows:

"Sec. 2. Appeals to the supreme court or to the court of appeals, if the court rules so provide, may be taken by the state in the following cases:
(1) From an order granting a motion to dismiss an indictment or information.
(2) 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.
(8) From an order granting a motion to correct errors.
(4) Upon a question reserved by the state, if the defendant is acquitted.
(5) From an order granting a motion to suppress evidence, if the ultimate effect of the order is to preclude further prosecution.
(6) From any interlocutory order...."

Subsection (4) appears to be the only provision which might be applicable. However, the record does not reflect any attempt by the State to reserve this or any other question for appeal. Even if the State had correctly attempted to reserve the question of the correctness of the trial court's granting of judgment on the evidence pursuant to TR. 50(B), that decision does not fall within the confines of appeal-able decisions as it is not a question of law. State v. Goodrich (1987), Ind., 504 N.E.2d 1023; State v. Robbins (1943), 221 Ind. 125, 46 N.E.2d 691. As a unanimous court held in State v. Harner (1983), Ind., 450 N.E.2d 1005:

"The purpose of the statute permitting appeals on questions reserved by the state is to obtain from this Court opinions of law which shall declare a rule for the guidance of lower courts on questions likely again to arise in the trial of eriminal prosecutions. This Court does not review questions of fact where the finding is for the defendant.
LJ * * * La *
In this case, the record shows that defendant presented a defense of self-defense and the appropriate instructions on lesser included offenses had to be determined by the trial court after considering the specific facts of the case. The law does not authorize this Court to review the facts and pronounce an opinion upon them. Therefore, there is nothing on this issue for us to review."

Id. at 1006.

Likewise, in the case before us, there is no appropriate question of law presented for review. The trial court granted a 50(B) motion for judgment on the evidence following a jury verdict finding the defendant guilty of criminal recklessness. That decision by the trial court was based upon the facts presented during trial. A review by this court of the evidence, to determine whether or not it supported the trial judge's conclusion, is unwarranted and unauthorized. As the United States Supreme Court observed in United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978):

"a defendant is acquitted only when 'the ruling of the judge, whatever its label, actually represents a resolution [in the defendant's favor], correct or not, of some or all of the factual elements of the offense charged'" [quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977) ]

Scott, supra, 437 U.S., at 97, 98 S.Ct., at 2197.

The trial judge made just such a factual determination in this case and that serves as an acquittal not subject to appeal. While the federal courts may permit re-entry of the jury verdict of guilty following an erroneous action by the trial judge, those courts are not bound by the statutory and procedural guidelines controlling in Indiana. On a federal level, congress has removed all previously existing statutory 'barriers to government appeals and such appeals are allowed unless barred by the *1114Double Jeopardy Clause of the Constitution. United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). Indiana still adheres to statutory limitations for appeal and this case is determined thereby. -

I would still affirm the judgment of the trial court in favor of Monticello.