In 1995, a jury found defendant Daniel Brackis guilty of driving while under the influence and driving while under suspension. The court sentenced defendant to one year in prison (the maximum term of incarceration) and placed him on five years’ active probation (the maximum term of probation). On appeal, we affirmed the convictions but reversed the probation order because we found that the court could not impose probation in addition to a maximum sentence. Since the court had not suspended any part of defendant’s sentence, we remanded the matter to the court “for a determination of a proper sentence.” See
Euclid v. Brackis
(Jan. 23, 1997), Cuyahoga App. No. 69928, unreported,
On remand, the matter remained pending for more than twenty-one months without any action on the remand order. Defendant filed a petition for postconviction relief, which asked the court to “dismiss the matter” pursuant to Crim.R. 32(A) 1 due to the delay in resentencing. The court granted the petition in part and dismissed the petition in part. The court found that it lacked jurisdiction as a municipal court to entertain the petition because R.C. 2953.21 does not apply to misdemeanor convictions. The court did, however, find that it had unduly *731 delayed in resentencing defendant and vacated the five-year term of probation. Defendant appeals, claiming that the court should have vacated the remaining two months of his sentence.
Although Fed.R.Civ.P. 32(A)(1) is virtually identical to Crim.R. 32(A)(1), Ohio and the federal courts differ when addressing the issue of unnecessary delay in resentencing. The federal courts do not appear to apply Fed.R.Civ.P. 32(A)(1) when dealing with the issue of unnecessary delay in resentencing. Instead, they apply a Sixth Amendment speedy-trial analysis. See,
e.g., United States v. Thomas
(C.A.6, 1999),
Ohio courts dealing with the issue of unnecessary delay in resentencing, however, have applied Crim.R. 32(A) to resentencing. See,
e.g., State v. Collier
(Oct. 24, 1991), Cuyahoga App. No. 61318, unreported,
However, in
State v. Taylor
(Oct. 29, 1992), Cuyahoga App. No. 63295, unreported,
Notwithstanding, we find that our remand order in Brackis in essence ordered a resentencing. The twenty-two-month delay between the remand and resentencing was a clear violation of the Sixth Amendment right to a speedy trial.
Defendant claims that the twenty-one-month delay between remand and resentencing, during which he remained free on appellate bond, would be extremely prejudicial if he were ordered to serve the remaining two months of his sentence. Under the circumstances, we find that the delay caused by the court’s failure to act timely on our order to make some disposition of probation constituted a Sixth Amendment speedy-trial violation of defendant’s rights. We therefore sustain the assignment of error and vacate the remaining portion of defendant’s jail term.
Judgment vacated and appellant discharged.
Notes
. The rale provides that ''[s]entence shall be imposed without unnecessary delay.”