Havvard v. State

STATON, Judge,

dissenting.

I dissent for the following reasons:

1. When a defendant exercises his right to have a trial by jury, and later, just before the set jury trial date, he waives the right to a jury trial, then he should be charged with a delay under Criminal Rule 4(C).
2. Inexcusable manipulations with the jury trial calendar of the trial court needlessly waste judicial resources.
3. The underlying speedy trial purpose of Criminal Rule 4(C) is made meaningless by allowing the defendant an escape from prosecution by narrowing the one year limitation.

Haward contends, and the majority agrees, that because he did not move to continue the May 8, 1997 trial date when he waived the jury trial, the trial was not delayed by his actions. However, a motion for continuance is not the only form of delay chargeable to a defendant under Crim. R.

*11224(C).3 When a defendant does something that is inconsistent with being brought to trial by the trial date or within one year, the time period should be extended accordingly. State v. Hurst, 688 N.E.2d 402, 408 (Ind.1997). For example, in Burdine v. State, 515 N.E.2d 1085, 1091 (Ind.1987), the Indiana Supreme Court held that a defendant’s guilty plea pursuant to agreement with the State and the subsequent withdrawal of that plea after the trial date had been vacated caused delay chargeable to the defendant.

Requesting a jury trial and then waiving it on the eve of trial is an oft-used delaying tactic which gives a defendant extra time in two instances. The initial request will generally result in a trial date which is later than the defendant would have received had he requested a bench trial at the outset. Subsequent waiver of the jury trial results in further delay because the trial court has to remove the case from the jury trial calendar and reset it on the bench trial calendar.

Haward asserts that there was no reason for the trial court to alter his trial date upon his waiver of jury trial. However, trial courts often schedule alternate jury trials for the same date, anticipating that some may be pled out or waived. Alternate trial scheduling decreases the chance that a jury panel will be called for naught. Proceeding with a bench trial when a jury panel has already been told to appear would waste judicial resources.

Crim. R. 4(C) is meant to protect a defendant’s right to a speedy trial — not to be used as an escape hatch for defendants who successfully manipulate trial scheduling to their advantage. See State ex rel. O’Donnell v. Cass Superior Court, 468 N.E.2d 209, 211 (Ind.1984) (recognizing that the purpose of the rule is to ensure early trials and not to discharge defendants). A criminal defendant is free to waive his right to a jury trial at any time. However, if he waits until the trial date is set and the prospective jurors have been notified, he should not be allowed the dual benefit of gaining more time prior to trial and having that time count toward the one year period in which the State has to bring him to trial pursuant to Crim. Rule 4(C).

I would affirm the trial court.

. The language of Crim. R. 4(C) anticipates delay "where a continuance was had on [defendant’s] motion, or the delay was caused by his act .. (emphasis added)