228 N.E.2d 863 | Ohio Ct. App. | 1967
This is an appeal on questions of law from an order of the Court of Common Pleas dismissing an indictment of armed robbery against the accused, Doyle, on the ground he was denied a speedy trial.
Thereafter, and in a timely manner, the state gave notice to the trial judge of its intention to take an appeal to this court from the above order. A notice for leave to appeal to this court was filed and granted and a bill of exceptions was ordered to be prepared and filed. This has been done. Briefs have been filed by the state and by the trial court.
The underlying facts need some consideration to indicate the manner in which the question has arisen. On September 20, 1963, Doyle was indicted in Hamilton County and charged with armed robbery. He was free on bond at the time and could not be found for arraignment. It subsequently developed that at the time of indictment and ever since defendant, Doyle, has been confined in the Ohio Penitentiary serving a sentence as the result of conviction of another felony in another county of the state. In November 1963, this information became known to the Hamilton County officials who thereupon filed a so-called detainer with the prison authorities advising them that Doyle was wanted in Hamilton County as a result of the indictment. In February of 1964, Doyle's original bond was forfeited and satisfied by his surety.
Matters remained in status quo until February 1966, when Doyle was transferred at the request of the state to the county jail in Hamilton County. The reason for the transfer does not appear in the record, but the accused states that it was to stand trial. The bill of exceptions indicates that, sometime between November 1963 and February 1966, the exact date not being given in the record, Doyle wrote the prosecuting attorney in Hamilton County and requested that the "detainer" be dismissed. By answering letter, the prosecutor refused. At about the same time, Doyle requested of the clerk of courts a copy of the indictment. The record does not show any answer to this request.
On February 15, 1966, counsel was retained by Doyle, and at this time he entered a plea of not guilty to the indictment. In May of 1966, when the case was scheduled for trial, defendant, *99
by his counsel, filed a motion to discharge him according to Section
The case was ready for trial as scheduled on May 31, 1966. Both sides were ready to proceed, but a continuance was had by mutual agreement for the reason that no courtroom was available.
On June 15, 1966, defendant renewed his motion for a discharge for lack of a speedy trial, on statutory grounds. The motion was taken under submission by the court. A week later the case was called for trial and both parties were present and represented by counsel; the defendant waived a jury trial and the case was commenced on June 22 when the trial court heard evidence and arguments on the motion. On the next day of the proceedings the court determined that the motion to dismiss for lack of a speedy trial was well taken and that rights guaranteed the accused by the federal Constitution and by Article
On July 5, 1966, the court entered its judgment on this basis and ordered the defendant discharged. It is from this order that the instant appeal is taken by the state.
The state, appellant here, claims to prosecute its appeal pursuant to Section
At the outset we are confronted by the fact that the present case does not involve a violation of any statute providing a limitation upon the amount of time an accused may be held, either in jail or at bail, before he is entitled to be dismissed for lack of a speedy trial. The statutory provisions covering the failure to grant a speedy trial under certain conditions exist independently of the constitutional right. Two very recent pronouncements, State v. Gray,
Those two cases follow long established rules as to statutes dealing with a denial of a speedy trial, both in Ohio, beginning with Ex Parte McGehan,
Pertinent here for example is Shafer v. State,
Subsequently, the Court of Appeals for Hardin County in State
v. Knight,
In State, ex rel. Lotz, v. Hover, Prosecuting Attorney,
The writ of mandamus granted by that decision was subsequently withdrawn in State, ex rel. Lotz, v. Hover,
It will be noted that the Supreme Court recognized without question the principle that an accused inmate is required to take some affirmative action to avail himself of his constitutional right to a speedy trial. To this extent, obviously, the principle *102
propounded by this court in Shafer v. State,
Any doubt about the necessity of some affirmative action on the part of the accused inmate being necessary in order to invoke his constitutional right to a speedy trial is fully settled and determined in Partsch v. Haskins, Supt.,
The court below in its opinion gave some weight to the fact that a so-called detainer had been filed with the penal institution in regard to the accused, Doyle. The two lower court decisions cited as authority for considering a detainer as something other than a wanted notice are in error in the same respect. A detainer, as such, has no standing either under the Constitution, the statutory law or case law. It is simply a method whereby a police authority advises the institution in whose custody an accused is held that there are charges pending against the accused in another jurisdiction. The detainer charges nothing, draws no issue, has no legal force or effect, and does not place any additional burden upon the accused. Whatever may be institutional or administrative rules governing the detainer procedure is of no moment in considering the defendant's allegation of denial of a speedy trial under the Constitution. Indeed, it could well be argued that a peace officer holding a warrant *103 for the arrest of an accused confined elsewhere would be decidedly remiss in his duty if he did not advise the person who had custody of the accused that the warrant existed.
We do not find any indication, with the exception of theShafer case above, that it is the duty and obligation of the attorney representing the state of Ohio to provide the speedy trial or dismissal to which a defendant is constitutionally entitled; however, the Lotz case above would indicate to the contrary, as would, it seems to us, common sense. The respective functions of prosecuting official and court would be more easily distinguishable in this respect if Ohio followed the custom in many states of captioning its criminal charges, "The People versus John Doe," as is done in such states as New York and Illinois, for example. This serves to draw a clearer distinction between the means provided by law to levy a charge against a citizen as distinguished from the means provided by law to furnish a forum whereby a court may determine the issue of guilt. The principle in Ohio, however, is the same regardless of the terminology. The people, through a grand jury in the case of felonies, bring the charge and consign the case to a prosecuting attorney for trial as their advocate. The sovereign itself, that is the state, provides the machinery whereby the accused is tried and the issue of guilt determined. This is done through the judicial function represented by judges and courts as distinguished from the administrative function of the prosecutor's office. The Legislature has undertaken to spell out the point of responsibility in Section
In the instant case, the record shows that on February 15, 1966, defendant plead not guilty to the indictment. The case was not scheduled for trial until May of 1966, at which point the defendant, by his counsel and in perfect consonance with that portion of the statute quoted above, gave notice to the court by the filing of a motion to dismiss that the defendant was entitled to a speedy trial or dismissal. This was the first affirmative move on the part of the defendant to demand the speedy trial to which he was entitled.
Although the motion was overruled, and properly so, the court, again consonant with the above statute, scheduled the case for trial in that same month. A continuance was then had by mutual agreement on May 31, 1966, at which time both parties were ready to proceed. Two weeks later, the defendant renewed his motion, and a week later the trial was commenced. It is thus seen that trial was actually commenced less than six weeks after the original motion of the defendant directing the court's attention to the potential denial of a speedy trial.
It seems to us that this time scheduling is well within the defendant's constitutional right to a speedy trial, both under the Constitution, and the adjudicated cases, and in substantial compliance with the directory statute.
The inconsistency is readily apparent in the act of a defendant in demanding a speedy trial for the first time on or about the occasion of the case actually being scheduled for trial. It would seem to be too late to make such a demand at or about the time the parties are in court and ready to proceed with the trial which the defendant then claims for the first time has been denied him. This whole area is rather thoroughly explored in *105 57 A. L. R. 2d 302 under the annotation "Waiver or loss of accused's right to a speedy trial," particularly pages 326 to 342, inclusive, where it is seen that while the cases are not uniform the general and majority rule throughout the country and in the federal courts is consistent with the views herein expressed.
The effect of the erroneous dismissal of the charge in the court below upon the present status of the indictment remains to be considered. The Ohio statute relative to a dismissal of the accused for failure to bring him to trial within the time provided (Section
It would seem further that an accused who has been denied his constitutional right to a speedy trial, as distinguished from a mere statutory right, would be a person in regard to whom a lawful dismissal must also operate as an acquittal. To hold otherwise would be to make a vain and useless thing of an important segment of the Bill of Rights of both the state and federal Constitutions. If the sovereign were able to return repeated indictments against an accused who has been dismissed for lack of a speedy trial, the constitutional provision would mean nothing and the citizen would be subject to all the types of official harrassment which the Bill of Rights seeks to prevent, and contrary to every principle of constitutional law and human justice.
Here, however, we are concerned with a situation in which the dismissal is an erroneous one since, in this instance, defendant obviously has not been denied his right to a speedy trial. Under the circumstances, it seems to us that the dismissal accordingly lacks that degree of finality necessary to result either in a bar to further prosecution or as an acquittal. There appears to be nothing in the statutes governing criminal appeals generally, and in the particular statute relating to appeals *106
under limited circumstances by the state, to prevent the state from prosecuting an appeal on the merits from an interlocutory order of the court filed in the case prior to the time defendant was placed in any formal jeopardy by way of trial proceedings. In this case the facts indicate that defendant's motion for a dismissal was filed on June 15, 1966, and that the court considered the motion on June 22 and took testimony in support thereof at a time when the case was otherwise ready for trial. The court thereupon took the matter under consideration on the motion and the next day decided it to be well taken. The two motions to dismiss are analogous to the plea in abatement mentioned in the statute (Section
There is nothing in the record to indicate that the defendant was in jeopardy at any time, since the jury had been waived and no testimony in support of the charge had been taken. Whether we consider that an appeal from the court's ruling would lie because it was interlocutory in the nature of a plea in abatement, or whether we consider that the defendant waived his right to a speedy trial by agreeing to a continuance in May and by signing a waiver of jury trial on the day of trial, the result is the same; that is, no jeopardy attached and the erroneous dismissal could therefore not amount to a final judgment of acquittal or dismissal.
To sum up, an accused is entitled to a speedy trial under the Constitution irrespective of any statute. He must make a demand, however informal, upon the court itself to assert his right. Neither a detainer filed with a penal institution nor correspondence with the prosecuting attorney, nor a letter of inquiry to the Clerk of Courts provides the necessary affirmative action to require the court to provide the speedy trial. A trial granted within approximately six weeks after a demand is made upon the court for a speedy trial is a compliance with, rather than a denial of, the constitutional right. The erroneous granting of a motion to dismiss an indictment on the constitutional ground does not result in an acquittal of the accused, nor is it a *107 bar to further proceedings on the indictment. The state may appeal such proceedings in a criminal case, and the appeal, if valid, will not have the effect of a dismissal or an acquittal in the absence of any jeopardy on the part of the accused.
The dismissal of the court below is reversed, and the cause remanded for further proceedings according to law.
Judgment reversed.
HILDEBRANT, P. J., and LONG, J., concur.