OPINION
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 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 back to the court "for a determination of the proper sentence." See
State v.Brackis (Jan. 23, 1997), Cuyahoga App. No. 69928, unreported. At the time, defendant had served ten months of his one-year sentence, but was free on appeal bond.
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 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 it unduly
delayed in resentencing defendant and vacated the five-year term of probation. Defendant appeals, claiming the court should have dismissed the entire matter — namely, 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. Seee.g., United States v. Thomas (C.A.6, 1999), 167 F.3d 299" court="6th Cir." date_filed="1999-02-05" href="https://app.midpage.ai/document/united-states-v-jerry-preston-thomas-jr-761540?utm_source=webapp" opinion_id="761540">167 F.3d 299
(applying Sixth Amendment analysis to twenty-nine month delay in resentencing); Gable v. Massey (C.A.5, 1978), 566 F.2d 549 (applying Sixth Amendment analysis when the state trial court waited 118 days to comply with appellate court's mandate to resentence). In fact, one district court has expressly refused to apply Crim.R. 32 (A) (1) to resentencing, finding that the express wording of the rule does not apply to resentencing. SeeBooker v. Engle (S.D. Ohio 1982), 535 F. Supp. 1300" court="S.D. Ohio" date_filed="1982-04-05" href="https://app.midpage.ai/document/booker-v-engle-1736631?utm_source=webapp" opinion_id="1736631">535 F. Supp. 1300, 1302-1303.
Ohio courts dealing with the issue of unnecessary delay in resentencing, however, have applied Crim.R. 32 (A) (1) to resentencing. See, e.g., State v. Collier (Oct. 24, 1991), Cuyahoga App. No. 61318, unreported; State v. Crosier (May 31, 1988), Tuscarawas App. No. 87 AP 12-0098, unreported (fourteen-month delay between appellate remand and resentencing violated Crim.R. 32 (A) (1)).
However, in State v. Taylor (Oct. 29, 1992), Cuyahoga App. No. 63295, unreported, this court cited to Booker v. Engle (S.D. Ohio 1982), 535 F. Supp. 1300, for the proposition that Crim.R. 32 does not apply to resentencing.
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 the twenty-one month delay between remand and resentencing, during which time 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.
It is ordered that appellant recover of appellee his costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Euclid Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
TIMOTHY E. McMONAGLE, P.J., KENNETH A. ROCCO, J., CONCUR.
______________________________ JUDGE JOHN T. PATTON