"I. The trial court committed reversible error by dismissing thesecases on speedy-trial grounds where thе defendant failed to file awritten notice of availability."
{¶ 2} Having reviewed the record and pertinent law, we reverse the trial court's dismissal and reinstate the charges against Branham. The apposite facts follow.
{¶ 3} On May 12, 2000, Branham was cited for driving under the influence in violation of Cleveland Cod. Ord. 433.01(a)(1); fleeing or eluding a policе officer in violation of Cleveland Cod. Ord. 403.02(B); resisting arrest in violation of Cleveland Cod. Ord. 615.09; having a blood-alcohol content above the legal limit in violаtion of Cleveland Cod. Ord. 433.01(a)(3); having liquor in a motor vehicle in violation of Cleveland Cod. Ord. 614.04; possessing an open container of alcohol in violаtion of Cleveland Cod. Ord. 617.07; failing to wear a seat belt in violation of Cleveland Cod. Ord. 437.27(b); and peeling tires and exhaust noise in violation of Cleveland Cod. Ord. 431.36.
{¶ 4} Branham pled not guilty on May 15, 2000 and was released upon posting bail. A pretrial hearing was scheduled for May 17, 2000 on the above charges but Branham failed to appear. A capias was issued for his arrest.
{¶ 5} On October 11, 2000, Branham was stopped again for a traffic violation and charged with failing to have a driver's license in violation of Cleveland Cod. Ord. 435.01(a); driving an unsafe vehicle in violation of Cleveland Cod. Ord. 437.01; and failing to have a passenger seat belt in violation of Cleveland Cod. Ordinance 437.27(b)(2). A pretrial was scheduled for October 25, 2000. However, Branham failed to appear, resulting in another capias being issued for his arrest.
{¶ 6} Almost four years later, on May 18, 2004, Branham was in custody and a pretrial hearing was conducted. Branham had been out of prisоn for approximately one year, when he was arrested for getting into an altercation. At that time, his outstanding cases were discovered.
{¶ 7} At the hearing, Branham's counsel moved to dismiss the charges based on speedy trial grounds. Branham contended he was in the state penitentiary for a probation violation from August 2, 2002 until May 3, 2003. He claimed that while he was in prison, he wrote a letter to the Clerk of Courts inquiring about his pending cases and informed the court of his whereabouts and availability. Branham, however, did not have a copy of the letter and neither the court nor the prosecutor had evidenсe that such a letter existed.
{¶ 8} The trial court granted the motion to dismiss the charges after concluding that the bench warrants were never entered in the computer. According to the trial court, if the bench warrants had been properly entered, the parole authorities would not have relеased Branham until the charges were resolved. The trial court did not feel it was fair to pursue the charges after Branham had been out of prison for a year.
{¶ 9} In its sole assigned error, the City argues the trial court erred by dismissing Branham's charges. The City contends that because Branham failed to file a motiоn of availability pursuant to R.C.
{¶ 10} When reviewing a trial court's ruling on a speedy trial issue, we give dеference to the trial court's factual findings. However, we review de novo the application of those facts to the law.1
{¶ 11} Pursuant to R.C.
{¶ 12} Therefore, pursuant to R.C.
{¶ 13} As the Ohio Supreme Court held in State v. Hairston:4
"R.C.
{¶ 14} In the instant case, Branham was in the state penitentiary for part of the time that the charges were pending. These charges were brought almost two years prior to Branham entering prison. Brаnham does not claim that he was unaware of the pending claims. In fact, Branham claims he sent a letter inquiring about the pending charges and advising the сourt that he was in prison. Branham, however, does not have a copy of the letter, and neither the court nor the prosecutor have any еvidence it ever existed.
{¶ 15} The statute specifies the proper manner of notice as follows: "The written notice and request for final dispositiоn shall be given or sent by the prisoner to the warden or superintendent having custody of him, who shall promptly forward it with the certificate to the appropriate prosecuting attorney and court by registered or certified mail, return receipt requested."6 It does not appear from the record before us that Branham, if he provided notice at all, followed these requirements.
{¶ 16} Thus, because Branham failed to provide the requisite notice, the speedy trial time for the pending offenses was tolled while he was in prison.7 The City's duty to return him for trial was not triggered because Branham failed to рrovide the requisite notice pursuant to R.C.
{¶ 17} Although the trial court did not believe it was fair to pursue the charges after Branham had been out of jail for a year, based on the authority of State v. Hairston, Branham cannot avoid prosecution simply because the State failed to locate him. Accordingly, the trial court erred in dismissing Branham's charges. The City's sole assigned error is sustained.
Judgment reversed and case remanded.
This cause is reversed and remanded.
It is, therefore, ordered that said appellant recover of said appellee its costs herein.
It is ordered that a special mandate be sent to the Cleveland 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.
Celebrezze, JR., J., and Cooney, J., Concur.