                                  In the
                          Indiana Supreme Court
STATE of Indiana ex rel.                             )
Michael Shane BRAMLEY,                               )
      Relator,                                       )
                              v.                     )   No. 80S00-0507-OR-327
                                                     )
THE TIPTON CIRCUIT COURT                             )
and THE HONORABLE THOMAS R. LETT,                    )
AS JUDGE THEREOF,                                    )
      Respondents.                                   )

   PUBLISHED ORDER GRANTING PERMANENT WRIT OF MANDAMUS

        On July 22, 2005, Relator, by counsel, filed his petition for writ of mandamus and
accompanying application papers under the rules governing original actions. Relator is the
defendant in a criminal case entitled State v. Michael Shane Bramley, No. 80C01-0402-
MR-38, pending in the Tipton Circuit Court before the Honorable Thomas R. Lett
(collectively “the Respondents”). Relator requests a permanent writ requiring the granting
of his release under Indiana Criminal Rule 4(A), which the trial court last denied on July
20, 2005. Relator’s trial is currently scheduled for October 3, 2005. On July 25, 2005, this
Court issued an order allowing the Respondents, the Prosecuting Attorney, and the Indiana
Attorney General an opportunity to file briefs opposing issuance of the writ and/or
supplemental records by noon on August 4, 2005.

      No briefs opposing the application or supplemental records were filed by the
Respondents, the Prosecuting Attorney, or the Attorney General.

        This Court has conferred about the writ application and materials filed in support of
it. Each of the five Justices has had an opportunity to express his views on the application.
All five Justices have voted to grant Relator’s application. Accordingly, the Court grants
Relator’s application for the following reasons.

        Indiana Criminal Rule 4(A) provides, in relevant part, “No defendant shall be
detained in jail on a charge, without a trial, for a period in aggregate embracing more than
six (6) months from the date the criminal charge against such defendant is filed, or from the
date of his arrest on such charge (whichever is later); except where a continuance was had
on his motion, or the delay was caused by his act, or where there was not sufficient time to
try him during such period because of congestion of the court calendar[.]” (Emphasis
added.) The rule provides further that “a trial court may take note of congestion or an
emergency without the necessity of a motion, and upon so finding may order a
continuance.” Id. “Any defendant so detained shall be released on his own recognizance at
the conclusion of the six-month period aforesaid and may be held to answer a criminal
charge against him within the limitations provided for in subsection (C) of this rule.” Id.
Further, “When a continuance is had on motion of the defendant, or delay in trial is caused
by his act, any time limitation contained in this rule shall be extended by the amount of the
resulting period of such delay caused thereby.” Crim. R. 4(F).
        In this case, 526 days passed between the first day Relator was under arrest and
charged, February 10, 2004, and the date when the trial court denied his last motion for
release on his own recognizance, July 20, 2005. Not all of those 526 days count toward the
six-month period described in Criminal Rule 4(A). Specifically, Relator is charged with
the 25 days of delay (from April 12, 2004, until May 7, 2004) resulting from his motion to
continue the pretrial conference from April 12, 2004, until the date of the rescheduled
pretrial conference on May 7, 2004, at which the first trial date of October 19, 2004, was
set. Likewise, 265 days of delay (from October 19, 2004, to July 11, 2005) are attributable
to Relator as a result of his successful motions to continue the October 19, 2004 and
February 22, 2005 trial dates and his unsuccessful motion in the Court of Appeals for
permission to take a discretionary interlocutory appeal, which led to his case being set for
trial on July 11, 2005. Also exempted from Criminal Rule 4(A)’s six-month period are the
nine days after July 11, 2005, which are attributable to the trial court’s finding of an
emergency in response to the State’s emergency motion for continuance of the trial date.
Thus, the delays resulting from Relator’s own acts or motions to continue or to the
emergency total 299 days (25 + 265 + 9). When these 299 days are subtracted from the 526
days Relator has been detained, 227 remain. This period exceeds six months.
Consequently, the trial court should have granted Relator’s July 19, 2005 motion for release
on his own recognizance, and Relator is entitled to such release.

         The result would not change even if delays resulting from Relator’s motions to
continue were calculated from the date on which he made his motions rather than from the
first day of delay in a court event resulting therefrom. Cf. Vermillion v. State, 719 N.E.2d
1201, 1204 (Ind. 1999) (stating that for purposes of one-year rule in Criminal Rule 4(C),
the time between the motion for a continuance and the new trial date is chargeable to the
defendant). Under this alternative method of calculating delay, Relator would be charged
with 31 days (from his April 6, 2004 motion to continue the pretrial conference until the
rescheduled pretrial conference on May 7, 2004) and with 293 days (from his September
21, 2004 motion to continue the October 19, 2004 trial date until July 11, 2005, the next
trial date that was not continued on his motion). Eight days (from July 11 to July 19, 2004)
would be attributable to emergency, and one final day would be attributable to Relator’s
July 19, 2005 motion to continue the July 25, 2005 trial date, which the trial court granted.
Consequently, 333 days (31 + 293 + 8 + 1) of the total 526 would be attributable to
Relator’s motions to continue, his acts, or an emergency, leaving 193 days. This period
exceeds six months, also. Therefore, under either method of counting delay, Relator would
be entitled to release on his own recognizance pending trial.

        In a September 27, 2004 order, the trial court ruled that Relator “acquiesced” in the
October 19, 2004 trial setting by not objecting when that trial date was set at a pretrial
conference on May 7, 2004. R. 16. We have held that when a trial court, acting within the
one-year time limit of Criminal Rule 4(C), schedules trial to begin beyond the one-year
limit, the defendant must make a timely objection to the trial date or waive his right to a
speedy trial under that rule. Vermillion, 719 N.E.2d at 1204. However, the right to be tried
within a certain time period or discharged—which is protected by both Criminal Rule 4(B)
(seventy-day rule) and 4(C) (one-year rule)—is different than the right to be released on
one’s own recognizance pending trial once the defendant has been detained for more than
six months without a trial. While the scheduling of a trial date beyond the time limits in
Criminal Rule 4(B) and 4(C) may be inconsistent with those rules and result in
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“acquiescence” when the defendant does not object at the first opportunity, there is nothing
about the scheduling of a trial for a date beyond the six-month period in Criminal Rule
4(A) that is inconsistent with a defendant’s assertion of his right to release on his own
recognizance once the six months pass. Although language in some cases has suggested a
defendant waives his right to release by not timely objecting when a trial is scheduled for a
date outside the six-month period, see Mills v. State, 512 N.E.2d 846, 850 (Ind. 1987)
(citing Bowens v. State, 481 N.E.2d 1289 (Ind. 1985), such language appears to be dicta
because the defendants in those two earlier cases appealed after being convicted, when the
issue whether they were entitled to release prior to trial had become moot, and this Court
specifically found the Criminal Rule 4(A) issue moot in each case. Mills, 512 N.E.2d at
850; Bowens, 481 N.E.2d at 1290.

        Finally, we note that despite the plain language in Criminal Rule 4(A) exempting
from the six-month period delay attributable to a defendant’s motion for continuance,
language in some cases states that delay attributable to such continuances may be charged
against the State if the defendant moved for a continuance because of the State’s failure to
respond to discovery requests. See, e.g., Stephenson v. State, 742 N.E.2d 463 (Ind. 2001);
Biggs v. State, 546 N.E.2d 1271, 1274 (Ind. Ct. App. 1989). When granting Relator’s July
19, 2005 motion for continuance of the July 25, 2005 trial setting, the trial court purported
to “charge[] the State with the delay.” R. 36. We understand this to mean that the trial
court intended that the defendant not be charged with this delay. We need not decide
whether this finding was proper where the calculations above show that Relator is entitled
to release regardless of whether Relator was or was not charged with that delay.

       It is therefore ORDERED that the Respondents, the Tipton Circuit Court and the
Honorable Thomas R. Lett, as Judge thereof, grant the “Motion for Release Upon Own
Recognizance” that the Relator filed under Indiana Criminal Rule 4(A) on July 19, 2005, in
the underlying case. No petitions for rehearing or motions to reconsider may be filed. See
Original Action Rule 5(C).

       The Clerk is directed to serve certified copies of this order to the Honorable Thomas
R. Lett, Judge of the Tipton Circuit Court, Third Floor, Courthouse, 101 E. Jefferson St.,
Tipton, IN 46072; Jay Rich, Prosecuting Attorney, 222 S. Main St., Tipton, IN 46072;
Brent R. Dechert, 217 N. Main St., P.O. Box 667, Kokomo, IN 46903; Steve Carter,
Attorney General of Indiana; and the West Group for publication in the bound volumes of
this Court’s decisions.

       Done at Indianapolis, Indiana, this 26th day of August, 2005.


                                                        /s/ Randall T. Shepard
                                                        Chief Justice of Indiana


Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur. Boehm, J., concurs in result
with a separate opinion.



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Boehm, J., concurring in result.

        I concur, but note that it appears that the defendant may have agreed (or failed to
object) to a trial setting that would have tolled the time for his release under Mills v. State
and Bowens v. State. However, there is no response to the defendant’s petition, and on
this record I am uncertain precisely what occurred. I concur in the result for that reason.

       I agree that the majority accurately describes language from Mills v. State and
Bowens v. State as dicta. However, it seems to me that construing the right to release
pending trial under C.R. 4(A) in a manner out of synchronization with the right to be tried
under C.R. 4 (B) and (C) produces an unnecessary complication and trap for unwary
prosecutors and judges. Mills and Bowen establish a common timetable for both rules,
and inadvertent release of individuals presenting a flight or security risk is not something
we should encourage.

        Perhaps the rules should be amended to make clear that the right to release and
the right to be tried are on the same timetable. In the meantime I would adhere to the
Bowen/Mills language that produces that result, at least in most cases.




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