State v. Sagalovsky

BAKER, Judge,

concurring in part and dissenting in part.

I concur with the majority's opinion as to Parts II and III, but I must dissent from the majority's adoption of our motions panel's decision to deny Sagalovsky's Second Motion to Dismiss the appeal.

The majority correctly notes that the purpose of the procedural rules is to ensure orderly and speedy justice and that we must not become slaves to technicalities. Am. States Ins. Co. v. State of Ind. ex rel. Jennings, Ind., 258 Ind. 637, 283 N.E.2d 529, 531 (1972). But it seems to me that our aversion to technicalities has overcome Sagalovsky's right to speedy justice in this case.

Not only did it take the State nearly fifteen months to begin the prosecution of Sagalovsky's case, but the State also failed to timely notify him of its appeal. In fact, Sagalovsky was never served with a separate notice of appeal and did not learn about the existence of the appeal until the State's Appellant's Brief, which included a *267notice of appeal, was served upon him seven months after the notice of appeal had been filed. This is simply inexeusa-ble. Furthermore, it violates the purpose of the procedural rules-to provide speedy justice. The State has not yet shown a willingness to do so in Sagalovsky's case. Although late service may constitute substantial compliance, Murphy v. Ind. Harbor Belt R.R. Co., 152 Ind.App. 455, 459, 284 N.E.2d 84, 87 (1972), no remedial steps were taken by the State to serve Sa-galovsky in a reasonable manner. Thus, it appears to me that the motions panel erred as a matter of law by denying Saga-lovsky's motion for dismissal. Therefore, I vote to dismiss the appeal on this basis.