COA dismisses appeal that gave man ‘second bite at apple’

The Indiana Court of Appeals dismissed a case in which the trial court set aside a previous judgment in order to have a chance to get a new appeal. When doing so, the trial court noted, “hopefully the Court of Appeals wouldn’t frown upon” the judge who did that.

“This case is a reminder that we will not allow a defendant to have two bites at the proverbial appellate apple, especially when it happens with the assistance of a trial court that should have dismissed the underlying motion for lack of jurisdiction,” Judge Rudolph Pyle III wrote in Arthur Dale Miller v. State of Indiana, 38A02-1403-CR-141.

Arthur Miller initiated an appeal of the trial court’s denial of his motion to hold the Jay County sheriff in contempt for failing to transport him to the Department of Correction within five days of his sentencing. The COA previously dismissed his appeal based on failure to properly serve the sheriff with the notice of appeal. Miller then sought to set aside the order denying his contempt motion and to have the trial court re-enter a judgment on his contempt motion so he could re-appeal the order. The trial court granted Miller’s request, leading to Miller’s attempt to re-appeal the denial of his contempt motion.

“Aside from the fact that the trial court should not have granted Miller’s Trial Rule 60(B) motion in order to allow him to circumvent this Court’s dismissal order and to have a second chance at appeal, the trial court did not have jurisdiction – either the first time or the second time – to rule on Miller’s motion seeking to have the Sheriff held in contempt because Miller failed to show that he had standing to bring such a motion,” Pyle wrote.

“Here, Miller filed a pro se motion to find the Sheriff in civil contempt and filed this motion in his criminal cause. Aside from Miller’s generic assertion that his due process rights were violated because the Sheriff had not transported him to the Department of Correction within five days of sentencing, Miller made no specific showing that he had a demonstrable or direct injury. Furthermore, the trial court’s order directing the Sheriff to transport Miller and the statute addressing the duties of a sheriff appear to be merely administrative directives, and Miller did not show that they confer any specific right or a private right of action to a defendant such as him. Because Miller did not have standing to bring his contempt motion, the trial court did not have jurisdiction and should have dismissed his motion.”

“Moreover, even if Miller had a private right of action and we were to consider the lack of transfer to Department of Correction within five days as an injury to Miller sufficient enough to find that he had standing to challenge the Sheriff’s compliance with a trial court order, Miller’s argument was rendered moot when the Sheriff transferred Miller to (The DOC’s Reception Diagnostic Center) on January 23, 2013.”


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