In Re Therklidsen
Defendant appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, finding him to he a delinquent minor because of his commission of a robbery. In support of his appeal, defendant raises two assignments of error, as follows:
1. “The trial court abused its discretion by granting the April 13 continuance.”
2. “The trial court erred in overruling appellant’s motion to dismiss for failure to comply with the ten day limitation of Ohio Rule Juv. P. 29[A].”
Defendant raises no issue with respect to the finding that he committed the robbery in question and, thus, was a delinquent minor, but, instead, contends that he should be discharged because he was not tried within the time specified by
The trial court found that the adjudicatory hearing was timely held in accordance with
“* * # If the child who is the subject of the complaint is in detention or shelter care, the hearing shall be held not later than ten days after the filing of the complaint; upon a showing of good cause the adjudicatory hearing may be continued and detention or shelter care extended.”
The report of the referee indicates hearings on April 11, 12, 13, and 21. There were two hearings on April 12 before different referees.
Defendant was arrested on April 8, 1977, the day that it is alleged the offense occurred. It appears that on April 11 defendant appeared “on a complaint of robbery.” The
Unfortunately, the original complaint, or affidavit, does not appear in the record hereof, only the amended complaint being included in the record, and the docketing of the case commencing on April 12, 1977, despite the fact that hearings were held at least as early as April 11, and they could not properly have been conducted in the absence of some filing being made.
Juv. E. 6 specifies the circumstances under which a child may be taken into custody. The only circumstance applicable herein is “pursuant to the law of arrest.” Although the record does not affirmatively indicate, apparently the arrest was without a warrant, since there is no record of an order of the court that defendant be taken into custody, which necessarily would have beeu preceded by the filing of a complaint, and, accordingly, E. C. 2935.05 is applicable. That section requires the filing of an affidavit describing the offense for which the person was arrested, either with the court or with the prosecuting attorney. If filed with the attorney, he must forthwith file a complaint with the court based on the affidavit. Both E. C. 2935.03 and 2935.04 permit detention of a person arrested without a warrant only until a warrant can be obtained, which, pursuant to E .C. 2935.08, is to be issued forthwith upon the filing of the affidavit or complaint in accordance with E. C. 2935.05.
We shall not presume that the proper procedures were
Accordingly, we conclude that the defendant was not tried within the 10-day period prescribed by
However, even assuming the continuance to be ineffective, the release sought by defendant is not appropriate. Neither
In the absence of a specific statutory provision for a discharge constituting a bar to further prosecution, a provision requiring a trial within a certain period of time does not entitle the defendant to discharge.
Additionally, Juv. E. 29(A) could not have such an effect in any event since it is a procedural rule, not a substantive rule of law. Section 5, Article IV, Ohio Constitution, pursuant to which Juv. E. 29(A) was promulgated, provides that:
“The supreme court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right.
The granting of a right to discharge which would constitute a bar to further prosecution for failure to bring the accused to trial within a certain period of time would confer a substantive right upon the accused, which a procedural rule such as
Accordingly, there being no statutory provision requiring the discharge of defendant if he is not tried within 10 days after the filing of the complaint against him, there was no such right in defendant, and the trial court did not err in overruling his motion for dismissal of the charges against him. The second assignment of error is not well taken.
The first assignment of error raises the issue of whether the trial court abused its discretion by approving the action of the referee in granting a three-day continuance in the trial date from April 18 to April 21, 1977. Juv. E. 29(A) specifically provides for such a continuance “upon a showing of good cause.” Defendant contends that Juv. E. 23 is applicable, which provides that: “Continuances shall be granted only when imperative to secure fair xreaxment for the parties.” Defendant contends that the use of the word “imperative” connotes dire necessity or absolute necessity for the continuance. The word “imperative,” connoting that which cannot be avoided, is essentially syn
There is no indication that the three-day continuance granted in any way prevented defendant from having a fair trial. Furthermore, the state requested the additional time in order properly to prepare its case against defendant. The total period involved between the time that defendant entered his plea and the scheduled trial date was nine days after the continuance. The trial court did not abuse its discretion in granting such a limited continuance. The first assignment of error is not well taken.
For the foregoing reasons, both assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, is affirmed.
Judgment affirmed.