Section 2937.10, Eevised Code, provides as follows:
“If thе charge be a felony and there be no written plea of guilty оr waiver of examination, or the court or magistrate refuses tо receive such waiver, the court or magistrate, with the consеnt of the prosecutor and the accused, may set the matter for hearing forthwith, otherwise he shall set the matter for hearing at a fixed time in the future and shall notify both prosecutor and defendant рromptly of such time of hearing.”
As can be seen, the above statute grants discretion to a Municipal Court in the matter of holding an immеdiate preliminary hearing. However, if the court determines not to so proceed, a hearing “shall” be held “at a fixed time in the future.” This latter language necessarily brings into consideration the prоvisions of Section 2937.21, Eevised Code, which states:
“No continuance at any stage of the proceeding, including that for determination of a motion, shall extend for more than ten days unless both the state and the accused consent thereto. Any continuance or delay in ruling contrary to the provisions of this section shall, unless procured by defendant or his counsel, be grounds for discharge of the defendant forthwith.”
Irrespective of administrative problems which might arise from an enforcement of that section, it is a clear and unаmbiguous statement which the courts are bound to follow unless and until the Gеneral Assembly announces otherwise.
If, “at any stage of the prоceeding,” a continuance for more than ten days is granted over the objection of an accused, Section 2937.21, Eevised Code, requires that his demand for discharge be granted forthwith. For this statute tо hold any meaningful efficacy, the term “discharge”
It should be noted, however, that the discharge provision of the stаtute is not self-executing. By employing the phrase “shall * * * be grounds for discharge” (emphasis added), the General Assembly clearly provided that some timely and proper action by or in behalf of an aсcused must be initiated to secure the required release. It should bе observed further that, unless jeopardy has attached, there appears to be no reason why identical charges and proceedings could not be reinstituted against an accused disсharged under Section 2937.21, Revised Code. City of Columbus v. Nappi (1966),
While it is tempting to discuss the ramifications of facts which might amount to a constructive continuanсe, we refrain from doing so under the state of the instant record.
Nothing herein should be construed as a departure from our previous holdings that there is no constitutional right to a preliminary hearing and thаt when an indictment is returned by a grand jury a hearing under Section 2937.10, Revised Code, is no longer necessary. State v. Wigglesworth (1969),
In view of the foregoing discussion, it is clеar from the facts presented that appellant was provided a remedy (the adequacy of which is not now decided) by Section 2937.21, Revised Code, and, since a proper grand jury indictment has bеen returned, the appellee no longer has a clear legal duty to conduct a preliminary hearing.
The judgment of the Court of Appeals, denying the writ of mandamus, is affirmed.
Judgment affirmed.