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228 Ind. 577

Payton v. State

Indiana Supreme Court

Decided October 27, 1950

Indiana Supreme Court · decided 1950-10-27

Cited by 4 later decisions — most recently August 1970

4 state decisions

Key passage — most relied on by later courts

““(A) Any defendant convicted after a trial or plea of guilty may petition the court of conviction for permission to file a belated motion for new trial, 1 where: “(1) no timely and adequate motion to correct error was filed for the defendant; “(2) the failure to file a timely motion to correct error was not due to the fault of the defendant; and “(3) the defendant has been diligent in requesting permission to file a belated motion to correct error under this rule. “The trial court shall not consider the merits of the motion, but shall determine whether there are grounds for allowing the belated motion to correct error to be filed. Any hearing on the petition shall be conducted according to Post-Conviction Remedy Rule 1 (E). “If the trial court finds such grounds, it shall permit the defendant to file the motion, and the motion shall then be treated for all purposes as a motion to correct error filed within the prescribed period. “If the trial court finds no such grounds, it shall deny defendant permission to file the motion. Defendant may appeal such a denial and the only assignment of error required is that the trial court ruling is contrary to law.””

quoted by 1 later decision, including Jones v. State

Relies on Walker Alias Walters v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1950-10-27

View the full empirical analysis of this case →

Jasper, J.

¶1The petitioner has filed with this court what he designates a “Verified Petition For Permission To File Belated Appeal.” The petitioner shows that he was convicted of second degree murder on September 30, 1925, in the Vigo Circuit Court, and sentenced to imprisonment in the Indiana State Prison for the remainder of his life; that on the 17th day of October, 1925, he was confined in the State Prison; that he attempted by letter to contact his attorney for the purpose of filing a motion for a new trial in his cause; that he was not permitted to mail the letter by the prison officials; that he then had a fellow inmate prepare a motion for a new trial, to be filed in the Vigo Circuit Court, and attempted to mail the same, but was denied the right to do so. Petitioner prays the permission of this court to file a belated appeal from the judgment of the Vigo Circuit Court.

¶2This petition, even though it is designated a petition for a belated appeal, is a petition for permission to file a belated motion for a new trial. This court has no jurisdiction over such a motion. It must be filed in the trial court. Courts of general jurisdiction have the power to give the litigant an opportunity to file a motion for a new trial where fraud, surprise, accident, mistake, or excusable neglect is shown. Walker alias Walters v. State (1948), 226 Ind. 552, 83 N. E. 2d 245. Courts of general jurisdiction, by way of their equitable powers, may grant a new trial after term. The right to a new trial, or the right to file a motion for a new trial, can only be established *579and adjudicated by an orderly proceeding in the trial court, which is adversary, and, as we have said equitable in its nature, for facts which warrant the granting of a new trial. Walker alias Walters v. State, supra.

¶3The petitioner in this cause must file his petition for permission to file a motion for a new trial in the Vigo Circuit Court, so that such petition may be heard and determined by the trial court. Until this is done, this court cannot entertain a petition for a belated appeal.

¶4Leave to file this petition is denied for want of jurisdiction.

¶5Note.—Reported in 94 N. E. 2d 592,

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