FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

ANDREW C. KRULL    JEFFREY A. MODISETT
Marion County Public Defender    Attorney General of Indiana
Indianapolis, Indiana
             ANDREW L. HEDGES
            Deputy Attorney General
            Indianapolis, Indiana

WADE HAVVARD,                  )
                                    )
    Appellant-Defendant,            )
                                    )
        vs.                         )    No. 49A02-9802-CR-100
                                    )
STATE OF INDIANA,                   )
                                    )
    Appellee-Plaintiff.             )

                                

as the trial court determined. The trial court therefore erred in attributing those two hundred twenty-five days to Havvard.See footnote 2
    We agree with Havvard that his last minute waiver of a jury trial did not mean that the trial court could not try him as scheduled. It would merely have been a bench trial rather than a jury trial. Havvard did not request a continuance of the scheduled trial when he waived the jury. The trial court gave no reason in the record for why the trial could not or would not be held as scheduled. When the record is silent concerning the reason for a delay, it is not attributable to the defendant. Hendricks v. State, 555 N.E.2d 178, 179 (Ind. Ct. App. 1990). Moreover, congestion will not be assumed when the docket states no reason for the delay. Solomon v. State, 588 N.E.2d 1271, 1272 (Ind. Ct. App. 1992).
    We turn, then, to the question of whether Havvard objected to the trial setting at the earliest opportunity. When a defendant learns within the period provided by the rule that the case is set for trial at a time beyond the date permitted, the defendant must object to such trial setting at the earliest opportunity. Raber v. State, 622 N.E.2d 541, 545 (Ind. Ct. App. 1993). If a defendant faced with a trial set outside the prescribed one-year period fails to object at the earliest opportunity, he is deemed to have acquiesced to the belated trial date. See id. “At the earliest opportunity” does not necessarily mean “immediately.” An objection

must be lodged in time to permit the trial court to reset the trial for a date within the proper period. Martin v. State, 419 N.E.2d 256, 258 (Ind. Ct. App. 1981).
    We believe Havvard's objection, though not made at the pre-trial conference at which the trial court set his trial outside the allowable time nor immediately after, was nevertheless timely. Including the fifty-nine day delay Havvard acknowledges is attributable to him and the forty-seven days in which Havvard can be said to have acquiesced to the trial setting before his objection, the one year period in which to bring Havvard to trial was extended to October 27, 1997. The trial court therefore had approximately four months after Havvard's objection in which to reset his trial or find that court congestion prevented resetting his trial within the one-year time limit. We realize court dockets are busy, necessitating the setting of trials many weeks, if not months, down the road. However, that is the very reason an express finding of “court congestion” extends the one year period for bringing a defendant to trial. See Clark v. State, 659 N.E.2d 548, 551-52 (Ind. 1995).
    Havvard has demonstrated that he was entitled to discharge on Criminal Rule 4(C) grounds upon his motion. The trial court erred in failing to grant said motion for discharge prior to trial.
    Reversed and remanded with instructions to grant Havvard's motion for discharge and vacate the convictions against him.
KIRSCH, J. concurs.
STATON, J. dissents with opinion.

WADE HAVVARD,    )
            )
    Appellant-Defendant,    )
            )
        vs.    )    No. 49A02-9802-CR-100
            )
STATE OF INDIANA,    )
            )
    Appellee-Plaintiff.    )

STATON, Judge, dissenting.

    I dissent for the following reasons:

    1.    When a defendant exercises his right to have a trial by jury, and later, just before the set jury trial date, he waives the right to a jury trial, then he should be charged with a delay under Criminal Rule 4(C).

the trial court has to remove the case from the jury trial calendar and reset it on the bench trial calendar.
    Havvard asserts that there was no reason for the trial court to alter his trial date upon his waiver of jury trial. However, trial courts often schedule alternate jury trials for the same date, anticipating that some may be pled out or waived. Alternate trial scheduling decreases the chance that a jury panel will be called for naught. Proceeding with a bench trial when a jury panel has already been told to appear would waste judicial resources.
    Crim. R. 4(C) is meant to protect a defendant's right to a speedy trial-- not to be used as an escape hatch for defendants who successfully manipulate trial scheduling to their advantage. See State ex rel. O'Donnell v. Cass Superior Court, 468 N.E.2d 209, 211 (Ind. 1984) (recognizing that the purpose of the rule is to ensure early trials and not to discharge defendants). A criminal defendant is free to waive his right to a jury trial at any time. However, if he waits until the trial date is set and the prospective jurors have been notified, he should not be allowed the dual benefit of gaining more time prior to trial and having that time count toward the one year period in which the State has to bring him to trial pursuant to Crim. Rule 4(C).
    I would affirm the trial court.

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