dissenting.
I dissent from the majority’s order dismissing the State’s petition for rehearing.
In its order, the majority makes specific findings of fact. Finding number 6 appears to be nothing more than an attempt to strengthen the basis of its original stay order by setting out a lengthy quote from a “medical report.” This finding may be somewhat misleading when taken out of context. The quote is actually from a document entitled “Nursing Interview and Assessment.” This document is merely one report in a packet of materials transmitted to this Court by the Department of Correction. Additionally, the materials include: a medical report, a dental examination, an EKG report, a hematology report and an x-ray report. This information was compiled and examined by the Superintendent of the Westville Correctional Center. In a cover letter to the packet of medical reports the Superintendent stated:
“The physical examination was completed as ordered to determine1. as to whether or not the Department of Correction can maintain the defendant without injury to his health.’
“Based upon the findings of that physicai examination, it is determined that the Indiana Department of Correction will be able to properly maintain the defendant at either the Westville Correctional Center or another faciiity or institution that is under contract to the Department of Correction for care of acute medical problems." (Emphasis added.)
The majority would seemingly ignore the fact that the Superintendent has determined that the Department of Correction would be able to properly maintain Drost. It is interesting to note that although Drost pleaded guilty to certain crimes, and was sentenced accordingly, he remains at liberty despite the fact that he could be properly maintained by the Department of Correction. One might ask whether Drost’s physical disabilities and ailments put him beyond the reach of the law.
In the order dismissing the State’s petition the majority rules that the State’s petition for rehearing is premature because the original order granting the stay of execution is “... merely collateral and procedurally incidental to an eventual final decision.” What the majority ignores however is the fact that the trial court’s order denying the stay of execution was a final order disposing of a single issue. The majority’s original grant of the stay pursuant to Ind. Rules of Procedure, Appellate Rule 6(B) in effect found an abuse of discretion by the trial court and reversed its denial of the *581stay. The majority now forecloses the State’s right to seek a rehearing, and possibly transfer, of a final adjudication on the stay. The only avenue now available to the State in its attempt to have the Court of Appeals order reviewed is through an application to the Supreme Court for a writ of mandate.
In support of its position, the majority cites City of Fort Wayne v. New Haven (1971), 257 Ind. 4, 268 N.E.2d 735. The majority fails to distinguish a crucial difference between the denial of a motion to affirm or dismiss and the granting of a stay of execution. The denial of a motion to dismiss or affirm does not operate as a final adjudication of any issue. The grounds raised in the motion may still be argued in the appeal on the merits of the case. Many times these motions are denied simply because the Court of Appeals prefers to decide a case on its merits when possible. See Lloyd v. Weimert (1970), 146 Ind.App. 666, 257 N.E.2d 851; Bailey v. Bailey et al. (1967), 142 Ind.App. 119, 232 N.E.2d 372; Kerski v. St. John’s Hickey Memorial Hospital et al. (1966), 138 Ind.App. 190, 212 N.E.2d 782.
The majority’s grant of the stay on the other hand is a final adjudication of an issue. It is utterly pointless to postpone review of the decision until the appeal on the merits is decided. If, on appeal, Drost’s conviction is affirmed, the stay of execution pending appeal would be automatically dissolved inasmuch as no appeal would be pending. If Drost’s conviction is reversed, he will be free as a matter of right and the stay would be unnecessary. Delaying review of the stay will render the issue totally moot. Inasmuch as the majority has made a final adjudication on the issue, I cannot agree that the majority’s stay order is “merely collateral and procedurally incidental to an eventual final decision.”
The present case is analogous to State ex rel. Drollinger v. Milligan (1975), 165 Ind.App. 435, 332 N.E.2d 799. The Court of Appeals in Drollinger denied a petition for a writ of mandate to require the judge of the Montgomery Circuit Court to set bail pending appellate review of revocation of Drollinger’s probation. Rehearing was denied on August 27, 1975. Transfer was denied by the Indiana Supreme Court on December 5, 1975. Rehearing and transfer were denied, not dismissed. Drollinger was given an opportunity to have the Court of Appeals’ denial of his petition reviewed by both the Court of Appeals and the Supreme Court.
I also cannot agree that a petition for rehearing is filed “primarily as a basis for a petition to transfer to the Indiana Supreme Court.” A petition for rehearing is to the Court of Appeals what a motion to correct errors is to the trial court. It permits a party to point out mistakes of law or fact and allows the Court to make any necessary modifications or corrections. See West v. Ind. Ins. Co. (1969), 253 Ind. 1, 247 N.E.2d 90 on remand 148 Ind.App. 176, 264 N.E.2d 335; Welsh, Governor, et al. v. Sells et al. (1963), 244 Ind. 423, 193 N.E.2d 359; Daviess-Martin Co. etc. v. Pub. Serv. Comm. (1961), 132 Ind.App. 610, 175 N.E.2d 439; Stillabower et al. v. Lizart et al. (1959), 130 Ind.App. 65, 161 N.E.2d 195. By dismissing the State’s petition for rehearing as being premature, the majority is foreclosing any opportunity to correct an error until after the issue becomes moot.
■ I would grant the State’s petition for rehearing and dissolve the stay of execution.