468 N.E.2d 328 | Ohio Ct. App. | 1983
Lead Opinion
This case is before the court on appeal from a judgment of the Lucas County Court of Common Pleas. *28
On April 22, 1983, the trial court granted defendants-appellees' motion to dismiss the indictments herein for failure to bring appellees to trial within the time period set forth in Ohio's speedy trial statute, R.C.
"The trial court should not have granted the motions to dismiss.
"A. Ohio Revised Code Sections
"B. The time for which the defendant-appellees must be brought to trial was tolled pursuant to Ohio Revised Code §
This assignment of error is devoid of merit.
First, the constitutionality of R.C.
Second, challenges to the speedy trial statute's constitutionality would carry little plausibility, since the Ohio Supreme Court has, in fact, quite authoritatively determined that issue. See State v. Pachay (1980),
"The statutory speedy trial provisions, R.C.
See, also, United States v. Brainer (C.A. 4, 1982),
In disposing of the prosecution's second argument, we begin by observing that the extensions of time ("tolling") permitted by R.C.
With these preliminary considerations in mind, we now turn to the pertinent procedural facets and dates involved in these cases, beginning with appellee *29
Geraldo's case. Since his case was the only one appealed by the state to this court from the trial court's suppression order of October 18, 1979, and the only one apparently involved in subsequent appeals to higher courts, the computations of time under R.C.
From November 17, 1978, the date of Geraldo's arrest, until April 22, 1983, the date on which the trial court granted the motions to dismiss in these cases, some 1,617 days elapsed without the commencement of a trial. To be sure, a significant portion of this time was extended or tolled under R.C.
The most obvious time period with which to begin our computation is the period following the Ohio Supreme Court's remand of State v. Geraldo (1981),
Geraldo did, of course, attempt to pursue further appellate review. On March 12, 1982, his counsel filed a petition for certiorari in the United States Supreme Court. The same was subsequently denied on May 3, 1982. The period between the filing of the certiorari petition and its denial was fifty-two days. Even discounting these fifty-two days from the period of time following the Ohio Supreme Court's remand to the trial court, two hundred eighty-four days passed before any further action was taken. Nothing whatsoever appears in the record that would conceivably toll this time under R.C.
In any event, the fifty-two days should be included in the total figure to be counted against the state for this period. As appellee correctly observes, since a petition for certiorari is addressed to the United States Supreme Court's discretionary
jurisdiction to review the case, the mere filing of the petition does not divest the trial court of jurisdiction nor does it stay or suspend the court's power to proceed with the case.2 Cf. Rule 19(1), Rules of the Supreme Court of the United States. Consequently, the full three hundred thirty-six days are chargeable to the state and, as is obvious, the time-limitation provision of R.C.
Beyond these three hundred thirty-six days, there are at least two hundred eighty-two additional days, by our calculation, that must be counted against the state for various reasons. The computations are as follows: *30
COMPUTATION OF DAYS DATES EXPLANATION CHARGEABLE TO STATE Nov. 17, 1978 to Date of arrest to date of Nov. 29, 1978 arraignment 12 days Dec. 27, 1978 to Dates encompassing continuance Jan. 17, 1979 by prosecution and unspecified continuance 21 days April 12, 1979 to Time running; no defense motions April 23, 1979 pending 11 days Oct. 18, 1979 to Date trial court granted Oct. 25, 1979 defendant's motion to suppress to date prosecution filed its notice of appeal 7 days Oct. 3, 1980 to Date of remand from Sixth Oct. 29, 1980 District Court of Appeals to date of entry of unspecified continuance 26 days Oct. 29, 1980 to Time running; further unspecified Nov. 26, 1980 continuance ordered 28 days Nov. 26, 1980 to Dates encompassing two further (Jan. 14, 1981) to unspecified continuances to date Feb. 5, 1981 Ohio Supreme Court granted defendant's motion for leave to appeal 71 days Dec. 14, 1982 to Dates encompassing unspecified (Jan. 6, 1983) to continuance to date prosecution March 22, 1983 requests trial court to schedule trial date 98 days March 22, 1983 to Date of prosecution's request March 30, 1983 for trial date to date defendant filed his motion to dismiss 8 days Total number of days chargeable to state 282 days
Again, this aggregate figure of two hundred eighty-two days isin addition to the three hundred thirty-six days chargeable to the state after the case was remanded to the trial court from the Ohio Supreme Court on January 12, 1982. Thus, the "grand total" chargeable to the state is six hundred eighteen days.
We also observe that in certain instances the record is devoid of any explanation for the passing of a given number of days. Other segments of time which must be counted against the state pertain to continuances that were granted, perhaps sua sponte or at a party's request, but in neither event does the record reflect which party requested the continuance or, if ordered by the trial court sua sponte, what the court's reasons were for ordering the continuance. For purposes of R.C.
The prosecution advances the argument that "actions of defense counsel" extended the time within which to bring appellees to trial, and that this time is entirely chargeable to them. We must reject this argument as we did in State v. Broerman, supra. Vague references to "conversations" between the court, prosecutor and defense counsel, to unrecorded "understandings," or to possible representations (and misrepresentations) to the trial court — none of which affirmatively appears in the record in the court's journal entries — are so greatly deficient on appeal as an excuse for the elapse of six hundred eighteen days (conservatively estimated) or as a justification for a groping, after-the-fact search of R.C.
As only one example among many, when this court reversed the trial court's suppression order and remanded the case on October 3, 1980, twenty-six days elapsed before any further action was taken. Then, on October 29, 1980, an unspecified continuance was granted by the trial court. Since the court's journal entry does not indicate whether the prosecution or the defense requested it, or whether the court ordered it sua sponte, the time which elapsed during this continuance is chargeable to the state. InState v. Mincy, supra, the Ohio Supreme Court made this point clear beyond dispute:
"* * *
"Since a court may only speak through its journal, it is necessary that such an entry be spread upon its journal prior to the expiration of the statutory time limit. * * *
"We therefore hold that, when sua sponte granting a continuance under R.C.
Between October 29, 1980 and November 26, 1980, another twenty-eight days passed. This time is also chargeable *32
to the state. In total, then, between the date of remand from this court (October 3, 1980) and November 26, 1980, a total of fifty-four days elapsed. Yet, in an interlocutory, pretrial appeal context, once an appellate court reverses and remands the case to the trial court, Ohio's speedy trial statutes apply. The prosecutor's duty resumes to prosecute the case diligently and bring the defendant to trial. See State v. Willis
(1980),
Between November 26, 1980, and February 5, 1981, the date on which the Ohio Supreme Court issued its mandate accepting review of Geraldo's appeal, seventy-one days passed. Since there is no indication in the record that the Supreme Court granted a stay of proceedings in the trial court prior to its February 5 mandate, the seventy-one days are all chargeable to the state.
The foregoing analysis should suffice as a brief indication of why reasonably meticulous journal entries and conscientious prosecutorial alacrity are absolutely essential to fulfilling the explicit mandate of Ohio's speedy trial statute.
With respect to the remaining six appellees, we have reviewed the record (including the trial court's journal entries) in their cases. That review has convinced us that the trial court properly dismissed the indictments and properly ordered their immediate discharge. In the present appeal in Geraldo's case, the state hasnot argued that its appeal of October 25, 1979 — its appeal of the trial court's suppression order — tolled the time under R.C.
However, we need not decide that issue, for even if the remaining appellees' cases are deemed to be similarly situated vis-a-vis Geraldo's case for the purpose of computing time under R.C.
On consideration whereof, the judgment of the Lucas County Court of Common Pleas is hereby affirmed. Appellees are ordered discharged forthwith. R.C.
Judgment affirmed.
CONNORS, P.J., and RESNICK, J., concur.
"The plain fact is that the state simply let this case sit on the trial court docket for nearly a year after the remand by the Ohio Supreme Court without ever requesting a pretrial conference, let alone a trial date."
"* * * This court has previously condemned after-the-fact extension[s] * * *[.] The General Assembly has placed a burden upon the prosecution and the courts to try criminal defendants within a specific time after arrest. If we were to follow the state's reasoning, the only burden upon the prosecution and the courts would be to assure that a trial is scheduled within the appropriate time limit as long as it could subsequently be explained why the defendant was not brought to trial within the statutory time frame. It is obvious such reasoning does not comport with the purposes of the speedy trial statutes." (Citations omitted.)
Besides being factually and procedurally inapposite to, and therefore distinguishable from, the present case, the prosecution's eleventh-hour reference to State v. Turner, supra, is "too little, too late." Spurious arguments about "flexibility" and "reasonableness" will not alter the hard fact that six hundred eighteen days elapsed without a trial. Since the record reveals not the slightest justification for this phenomenon, the prosecution may not now evade the statutorily imposed consequences of its own sloth. *33
Concurrence Opinion
I concur in the court's affirmance. I write separately only to underscore the lengthy delays which have taken place throughout this case.
In this appeal, the prosecution argues the applicability ofState v. Turner (1982),
However, in carefully examining the Turner case, one finds that it is easily and clearly distinguishable from the present one. The Turner case involved a trial, a conviction, an appeal from that conviction, a subsequent reversal and remand, and then, later, a dismissal of the case by the trial court.
Here, as is clear to everyone, there was never a trial. The prosecution appealed the trial court's suppression order on October 25, 1979. See R.C.
On appeal, the prosecution, in attempting to exonerate itself from the mathematical consequences of its own inaction, now vainly urges R.C.
Even if we were to discount as chargeable to appellees the time which elapsed between appellee Geraldo's filing of his motion to suppress on April 23, 1979, and January 12, 1982, the date on which the Ohio Supreme Court remanded this case to the trial court, the remaining three hundred thirty-six days would still exceed the statutory time limit.6 The passing of these three hundred thirty-six days, in light of all the other time which had passed, is simply inexcusable. Nothing in the record explains or justifies this delay.
I am compelled to conclude that not even a liberal reading of the statutory tolling provisions would save the indictments herein from being immediately dismissed or prevent appellees from being immediately discharged. See R.C.
