Lead Opinion
{¶ 2} "THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING THE DEFENDANT-APPELLANT'S MOTION TO DISMISS."
{¶ 3} Appellant's sole argument on appeal is that the court erred in denying his motion to dismiss the charge for violation of his right to speedy trial.
{¶ 4} Appellant was arrested on October 10, 2002. Appellant's initial appearance occurred on October 21, at which time he requested a continuance to obtain counsel. The continuance was granted, and arraignment was continued until October 28, 2002. On October 22, appellant requested discovery. Discovery was provided on Nоvember 12, 2002.
{¶ 5} From the date of arrest until December 6, appellant was being held on a holder from Coshocton County, as well as on a probation violation sentence from the Licking County Municipal Court. As of December 6, the Coshocton County holder and the probation violation had been completed. Trial was schedulеd for February 18, 2003.
{¶ 6} The court concluded that a total of 257 days had lapsed, thereby meeting the speedy trial 270-day limit for a felony. The court calculated that from Oсtober 10 until December 6, appellant would receive a 1-for-1 credit on the time limit, as he was being held on several charges. The court removed 21 days from the сalculation, finding that the speedy trial time was tolled from the date the request for discovery was filed, until discovery was provided. The court therefore gave aрpellant credit for 35 days from October 10, 2002, until December 6, 2002. From December 6, until February 18, the court gave appellant 3-for-1 credit, pursuant to R.C.
{¶ 7} Appellant concedes that if the time during which his discovery motion was pending tolled the speedy trial clock, then he was brought to trial within the statutory time. However, appellant argues thаt the court erred in failing to narrowly interpret the Ohio Supreme Court's decision in State v. Brown,
{¶ 8} The Ohio Supreme Court specifically rejected this case-by-case approach in Brown. The Court held that if trial courts granted case-by-case exceptions, the courts will be placed in the unenviable position of deciding how close to trial is too close to request additional discovery, and prosecutors could be forced to make hurried responses to avoid violating the speedy trial statute. Id. at paragraph 23. The court concluded that allowing a defendant's discovery request to toll the running of the speedy trial period is the most sensible interpretation of R.C.
{¶ 9} As Brown clearly appliеs to the instant case, the court did not err in overruling appellant's motion to dismiss.
{¶ 10} The assignment of error is overruled.
{¶ 11} The judgment of the Licking County Common Pleas Court is affirmed.
By Gwin, P.J., and Farmer, J., concur.
Concurrence Opinion
¶ 12 I concur in the majority's analysis and dispоsition of appellant's assignment of error based upon the authority of State v.Brown,
{¶ 13} The Brown decision holds discovery requests are tolling events pursuant to R.C.
{¶ 14} Crim.R. 16 distinguishes requests for discovery from motions for discovery. A request for discovery does not involve аny intervention by the court and does not necessitate delay on the part of the court in the scheduling of the trial. I concede a request for discovery may necessitate delay by diverting the attention of prosecutors from preparing their case for trial. I say "may" because preparing a discovery response seems to be an integral part the of process of preparing for trial and often times requires only a minimal amount of time and effort. My experiencе is in many cases the discovery response is prepared by administrative staff and only reviewed by the prosecutor for approval and signature. The delay nеcessitated by the response is often minimal, if any. If the prosecution felt the time spent preparing its discovery response hampered its ability to prepаre for trial, it could move to continue the trial and any time during such continuances would be tolled under R.C.
{¶ 15} I find the Supreme Court's concern over the timing of the discovery request most significant. Any last minute attempt by a defendant to cause a speedy trial violation by filing discovery requests just before trial is prohibited by Crim.R. 16(F). The rule provides a defеndant must make his motion for discovery within twenty-one days after arraignment or seven days before the date of trial, whichever is earlier, or at such reasonable timе later as the court may permit. Because a motion for discovery must be preceded by a demand [request] for discovery, it is axiomatic a defendant's request for discovery must be made, at the latest, seven days before trial. If made thereafter, the request would be untimely and not require continuance of an otherwise timеly scheduled trial. If the defendant is unprepared to proceed to trial without discovery after having timely requested it, the defendant would then move the trial court tо compel discovery and/or continue the case. In such a scenario, the speedy trial limit would be tolled by the defendant's motion and not his mere request for discovery.
{¶ 16} By tolling the time period between the discovery request and response, there is no incentive for the prosecutor to promptly respond to the rеquest. The prosecution could deliberately choose to delay its discovery response forcing the accused to file a motion for discovery and to secure a court order compelling the prosecution to provide it. If a defendant is in jail, such delay could provide a tactic to induce a plea. The end result is a defendant is forced to give up a portion of his or her statutory right to a speedy trial if the defendant chooses to exercise his or her right tо discovery under Crim.R. 16. The defendant should not be forced to surrender one right to enforce another.
{¶ 17} By not tolling the speedy trial time limit until a defendant files a motion for discovery, the defendant's right to a speedy trial is not compromised, and the defendant's right to a fair trial with discovery would be preserved.
{¶ 18} In this case sub judice, there is no indication the prosecution was delayed in its preparation for trial because of appellant's discovery request. Nothing in the record suggests it would have bеen unable to prosecute the case on the originally scheduled trial date and within the speedy trial guidelines, but for time spent preparing the discovery resрonse. Although as an appellate jurist, I normally welcome bright line tests and general rules of law, I am not persuaded the Supreme Court's attempt to avoid a case-by-case analysis is warranted in these cases.