741 N.E.2d 936 | Ohio Ct. App. | 2000
DECISION AND JUDGMENT ENTRY This is an appeal from a judgment of the Ottawa County Municipal Court in which the trial court ordered that appellant pay jury costs. For the reasons that follow, this court reverses the judgment of the trial court.
Appellant sets forth the following assignments of error:
"I. THE COURT UNLAWFULLY ASSESSED JURY COSTS AGAINST THE DEFENDANT.
"II. THE COURT IMPROPERLY FORFEITED THE BAIL OF THE DEFENDANT."
The facts that are relevant to the issues raised on appeal are as follows. On March 25, 1998, appellant was charged with driving under the influence of alcohol and driving outside the marked lanes of travel. On March 26, 1998, appellant posted a $10,000 bond. Thereafter, appellant's case was assigned a contingency jury trial date of March 30, 1999 and a primary jury trial date of June 15, 1999. Local Rule 23(4) of the Ottawa County Municipal Court states that:
"Counsel and parties shall be prepared to try a case, on a contingency basis, should the primary trial on that date be cancelled prior to 4:00 p.m. on the next regular court date preceding its trial date. Should a primary trial be cancelled after 4:00 p.m. on the next regular date preceding its trial date the contingency trial shall not be required to go forward."
On March 29, 1999, at a time which is in dispute and not clear from the record, appellant's counsel received notice that the primary trial for March 30 had settled and that appellant's trial was to proceed. Appellant's counsel asserts that he received this notice at 4:20 p.m., at which time he contacted the court and advised a staff member that appellant lived in Illinois and at 4:00 that day had been advised that his trial would not proceed the following day. A jury was summoned to appear on March 30 but neither appellant nor his counsel appeared. The trial court issued a bench warrant and forfeited the bond.
At a hearing held on May 19, 1999, the trial court reinstated the bond and ordered appellant to pay the costs for the jury that was summoned on March 30. On August 31, 1999, a jury trial was held and appellant was found not guilty of the charge of driving while under the influence of alcohol. The trial court found appellant guilty of the marked lanes violation. *561
Appellant asserts in his first assignment of error that the trial court erred by assessing jury costs when the jury was not sworn on March 30, 1999. Appellant cites R.C.
"In all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution and render a judgment against the defendant for such costs. If a jury has been sworn at the trial of a case, the fees of the jurors shall be included in the costs, which shall be paid to the public treasury from which the jurors are paid."
Ohio courts have held that a defendant incurs no jury costs unless and until the jury is sworn and begins to serve.Bayer v. Becker (1945),
In his second assignment of error, appellant asserts that the trial court erred by forfeiting his bail for the marked lanes violation after he failed to appear for the March 30, 1999 trial. The record in this case shows that appellant posted bond of $10,000 on May 26, 1998. The bond posting form contained in the record indicates that the bond was for the charge of violating R.C.
On consideration whereof, this court finds that appellant was prejudiced and the judgment of the Ottawa County Municipal Court ordering appellant to pay costs for the jury called in this case on March 30, 1998 is reversed and remanded *562 for further proceedings consistent with this decision. Costs of this appeal are assessed to appellee.
Melvin L. Resnick, J., Richard W. Knepper, P.J.,Mark L. Pietrykowski, J., CONCUR.
