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Judges uphold theft charge against man

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On interlocutory appeal, the Indiana Court of Appeals affirmed the denial of a man’s motion to dismiss his theft charge in Jay County because he caused the delay in the case by absconding. The case brought up the issue of whether knowledge by jail officials on the whereabouts of the defendant can mean that the judge and prosecutor were sufficiently notified.

George Feuston was arrested in Jay County and charged with Class D felony theft on May 3, 2009. While out on bond, he didn’t appear for his pretrial conference and was arrested in Delaware County on an unrelated charge in August 2009. In August 2010, Feuston filed a motion requesting a discharge of his theft charge pursuant to Indiana Criminal Rule 4(C) because more than a year had passed since he was arrested in Jay County. In an October 2010 motion, he attached a purported fax correspondence between the Delaware and Jay County jails showing that Jay County jail officials knew he was in the Delaware County jail, but there’s not chronological case summary entry in his Jay County case around the time the fax was sent.

The trial court denied his motion, concluding that he was responsible for all the delay from the time of his pre-trial hearing until August 2010 when he filed his motion.

In George A. Feuston v. State of Indiana, No. 38A02-1011-CR-1175, the judges affirmed the denial of his motion for discharge. The judges rejected his argument that his whereabouts is irrelevant because the trial court could set a trial date regardless of whether he is present, citing Schwartz v. State, 708 N.E.2d 34 (Ind. Ct. App. 1999). But Schwartz says that when the record is silent as for the reason for the delay, it won’t be charged to the defendant.

Judge Terry Crone wrote that the court was not inclined to create duty on the trial courts that they must fill their calendars with “place holder” trial dates for defendants who haven’t appeared or whose whereabouts are unknown.

The judges also discussed the issue of whether the Jay County jail officials had knowledge of Feuston’s location based on the fax presented by Feuston. The majority concluded that knowledge of a police office or correctional officer shouldn’t be imputed to the trial court or prosecutor in these circumstances, citing State ex rel. Johnson v. Kohlmeyer, 261 Ind. 244, 303 N.E.2d 661 (Ind. 1973).
 
Feuston didn’t present any evidence that the trial court or prosecutor knew where he was before he filed his August 2010 motion, so he hasn’t shown he’s entitled to discharge. In addition, he does not have clean hands in the matter since the prosecutor and court lost track of him because he absconded, wrote Judge Crone.

Chief Judge Margret Robb concurred in result because she felt the majority hold was too broad. She wrote that if there was indisputable evidence that jail officials knew where Feuston was and that he was incarcerated in Delaware County, the trial court and prosecutor were sufficiently notified of his whereabouts to begin the Rule 4(C) clock running as of that date.

But in this case, there is only evidence suggesting that the Jay County Jail became aware of his incarceration and the burden is on Feuston to support his claims, which he did not do, she wrote.

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