470 N.E.2d 421 | Ohio Ct. App. | 1983
These are consolidated appeals by Walter R. Cattee and Walter Johnson from judgments of conviction and sentence entered by the Portsmouth Municipal Court. The sole assignment of error is as follows:
"The court erred in its computation of time under the speedy trial provisions."
As pertinent here, the record reflects the following with respect to the appeal of Walter Johnson. On May 10, 1982, Johnson was arrested and charged in the Portsmouth Municipal Court with the offense of breaking and entering in violation of R.C.
Johnson was served with a copy of the indictment on June 9, 1982. His release on bond continued by reason of a recognizance bond executed June 14, 1982. On June 24, 1982, the court of common pleas ordered the transfer of the charges to the Portsmouth Municipal Court pursuant to Crim. R. 21, the transfer being effected on July 20, 1982. Trial was set for September 2, 1982. On August 26, 1982, Johnson filed a motion to dismiss for violation of the time requirements for trial in R.C.
With respect to Walter R. Cattee, the record reflects the following pertinent facts: On June 9, 1982, Cattee was arrested for the offense of felonious assault, a second degree felony, in violation of R.C.
On July 20, 1982, the transfer to the municipal court was effected and arraignment scheduled on July 29, 1982. On August 20, 1982, a motion to dismiss was filed for failure to comply with the speedy trial time requirements in R.C.
Appellants assert that the offenses charged in each indictment are based upon the same conduct upon which the felony complaints were also based. Appellee does not take issue with such claim and we assume it correct for the purpose of this opinion.
R.C.
"(B) A person against whom a charge of misdemeanor, other than a minor misdemeanor, is pending in a court of record, shall be brought to trial:
"(1) Within forty-five days after his arrest or the service of summons, if the offense charged is a misdemeanor of the third or fourth degree, or other misdemeanor for which the maximum penalty is imprisonment for not more than sixty days; *241
"(2) Within ninety days after his arrest or the service of summons, if the offense charged is a misdemeanor of the first or second degree, or other misdemeanor for which the maximum penalty is imprisonment for more than sixty days.
"(C) A person against whom a charge of felony is pending:
"( * * *
"(2) Shall be brought to trial within two hundred seventy days after his arrest.
"(D) A person against whom one or more charges of minor misdemeanor and one or more charges of misdemeanor other than minor misdemeanor, all of which arose out of the same act or transaction, are pending, or against whom charges of misdemeanors of different degrees, other than minor misdemeanors, all of which arose out of the same act or transaction, are pending shall be brought to trial within the time period required for the highest degree of misdemeanor charged, as determined under division (B) of this section.1
"(E) For purposes of computing time under divisions (A), (B), (C)(2), and (D) of this section, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days. This division does not apply for purposes of computing time under division (C)(1) of this section."
The pivotal issue posited for review is how the time provisions in R.C.
While the Ohio Supreme Court has not passed upon the precise question herein presented, the rationale of their holdings in other factual contexts is instructive as to the issue here considered.
In State v. Bonarrigo (1980),
In a similar vein, the holding in Sauers, which fails to give consideration to the prior pendency of the felony charge would also appear to "subvert" the policy of the speedy trial statutes by automatically adding, depending upon the degree of the misdemeanor, an additional period of up to ninety days irrespective of the delay involved in the pending felony complaint. In short, prosecutors could allow most of the two hundred seventy day period for felonies to expire, then extend the time by a misdemeanor indictment.
As stated in Bonarrigo, supra, at 11: "Concededly, an accused has a valid interest in, and an independent constitutional right to, a speedy trial. However, in construing the speedy trial statutes, this court also recognizes the public's interests not only in the prompt adjudication of criminal cases, but also in obtaining convictions of persons who have committed criminal offenses against the state." In fashioning a rule to accommodate and balance these interests, and recognizing the admonition of the Ohio Supreme Court as to strict enforcement of legislative mandates, see State v. Pachay (1980),
A much fairer rule, and one we adopt, is that where a felony complaint is filed, the accused is bound to the grand jury and an indictment charging a misdemeanor is returned, the statutory time limitations respecting the misdemeanor shall apply subject to the requirement that the time for trial shall not exceed the statutory period for trial of the felony. Such qualification of the ordinary rule of time limitations for misdemeanor trials is necessary to prevent unjustified delay following arrest to the prejudice of the accused, but at the same time realistically allows the prosecution to rely, prior to grand jury action, upon the felony time limitations. Thus, for example, where the prosecutor chooses to delay presentment of the felony charge to a grand jury of a defendant on bond, until two hundred days after arrest, the time for trial for a misdemeanor would be seventy days and not ninety days.2 *243
While the rule may impose an additional burden upon the prosecution in monitoring its cases, it is a reasonable accommodation of the competing interests of an accused and society to a speedy trial. In the event the evidence to be presented to the grand jury is not fully available, it is always within the power of the prosecution to seek entry of a nolleprosequi which will toll the speedy trial statute. State v.Spratz (1979),
Applying the rule to the facts in each of the cases before us, it follows that there was no violation of the appellants' speedy trial rights. Accordingly, the assignment of error is overruled and the judgment is affirmed.
Judgment affirmed.
ABELE, P.J., and GREY, J., concur.