¶1dissenting.
¶2It is my conclusion that the trial court was entitled to dismiss Locke’s motion to dismiss with respect to his first two child molesting counts. Locke was arraigned on two counts of child molesting on September 23,1985. At that time, he was informed by the judge that to avoid waiver, he would be required to file certain motions before his omnibus date of November 22, 1985. Locke’s motion to dismiss was one such motion that was required to be filed before the omnibus date. Ind.Code 35-34-1-4 (1982) provides that when a defendant is charged with a felony, a motion for dismissal must be made no later than twenty days prior to the omnibus date. Locke, however, filed his motion to dismiss on February 5, 1986, which was well after the passing of the deadline. Under these circumstances, the trial court could summarily deny the motion. IC 35-34-1-4(b); see also Averhart v. State (1984), Ind., 470 N.E.2d 666, cert. denied, 471 U.S. 1030, 105 S.Ct. 2051, 85 L.Ed.2d 323.
¶3The majority has waived consideration of the timeliness of Locke’s motion to dismiss because the State did not raise it on appeal, but has instead addressed the merits of Locke’s motion. While we have previously held that such waiver of error is appropriate, we have not held it to be required in every instance. In my view, we should be cautious in waiving plain error which is apparent on the record, whether such error favors the defendant or the State.
¶4In this instance, the State was not required by statute to respond to Locke’s motion to dismiss; the untimeliness of the motion permitted summary dismissal by the trial court. The public interest is ill served when we consider on appeal the merit of a motion which was dead and beyond hope of resuscitation at the trial level.
¶5The judgment of the trial court with respect to the first two charges against Locke for child molesting should be affirmed.