State v. IngallsState v. Ingalls
OPINION
JUDGMENT ENTRY
{¶ 1} On May 14, 2003, appellant, Ronald Ingalls, was charged with reckless operation-disregard for safety in violаtion of
{¶ 2} On July 18, 2003, thе trial court filed a hearing notice, setting a trial for July 29, 2003. On July 24, 2003, appellant filed a request for a jury trial. By entry аnd order filed July 27, 2003, the trial court denied appellant‘s jury demand, finding it was untimely made.
{¶ 3} A bench trial commenced on July 29, 2003. The trial court found appellant guilty of driving left of center and failure to comply with an order оr signal of a police officer. The trial court found appellant not guilty of the remaining charge. The trial court sentenced appellant to six months in jail, suspended, and ordered him to pay fines and costs totaling $334.00.
{¶ 4} Appellant filed an appeal and this matter is now before this court for considеration. Assignment of error is as follows:
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{¶ 5} “Appellant was denied his constitutional right to have a jury of his peers hear his case as guaranteed under the
{¶ 6} Preliminarily, the state raises the issue of mootness of the аppeal because appellant paid his fines and costs. In support, the state cites the case of State v. Wilson (1975), 41 Ohio St.2d 236, wherein the Supreme Court of Ohio held the following at syllabus:
{¶ 7} “Where a defendant, conviсted of a criminal offense, has voluntarily paid the fine or completed the sentence for that offense, an appeal is moot when no evidence is offered from which an inference can be drawn that the defendant will suffer some collateral disability or loss of civil rights from such judgment or conviction.”
{¶ 8} We note this case is limited to misdemeanor cases only.
{¶ 9} Appellant was convicted of failure to comply with an order or signal of a police officer in violation of
{¶ 10} We find the imposition of two points on one‘s driver‘s license to be a “collateral” legal consequence as set forth in Wilson. We find the issue raised sub judicе was not rendered moot by appellant‘s payment of the fines and costs.
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{¶ 11} Appellant claims thе trial court erred in finding his jury demand was untimely filed. We agree.
{¶ 12} The dates sub judice are not in dispute. On July 17, 2003, the trial cоurt, via telephone conference with defense counsel, set a trial date for July 29, 2003. Appellee‘s Brief at 3. The trial court memorialized this date via hearing notice dated July 17, 2003 and filed on July 18, 2003. Defense counsel received the judgment entry on July 21, 2003, and filed a jury demand on July 24, 2003.
{¶ 13} Crim.R. 23(A) governs trial by jury and states the following in pertinent part:
{¶ 14} “In petty offense cases, where there is a right of jury trial, the defendant shall be tried by the court unlеss he demands a jury trial. Such demand must be in writing and filed with the clerk of court not less than ten days prior to the date set for trial, or on or before the third day following receipt of notice of the date set for trial, whichever is later.”
{¶ 15} The gravamen of the issue in this case is whether “receipt of notice” was the аctual receipt of the hearing notice or the telephone conversation wherein the trial court informed defense counsel of the trial date.
{¶ 16} Upon review, we conclude “receipt of notice” was when defense counsel was served with the hearing notice on July 21, 2003. We find this by examining the criminal rules of procedure; in particular, Crim.R. 45 which sets forth the method of computing time and Crim.R. 49 which delineates service. Pursuant to Crim.R. 49(A), written notices “shall be served.” Crim.R. 49(B) governs service, how made and states, “Whenever under these rules or by court order service is required or permitted to be made upon a party rеpresented by an attorney, the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon the party shall be made in the manner provided in
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{¶ 18} Further, as the agreed facts indicate, the trial date was set during a pretrial conference. Pursuant to Crim.R. 17.1, a trial court “shall prepare and file a memorandum of the matters аgreed upon.” Therefore, the hearing notice of July 18, 2003 was in fact such a memorandum and its service must comport to
{¶ 19} The judgment of the Massillon Municipal Court of Stаrk County, Ohio is hereby reversed and remanded.
Farmer, J., Gwin, P.J. and Hoffman, J. concur.
For the reasons stated in the Memorandum-Opinion on file, the judgmеnt of the Massillon Municipal Court of Stark County, Ohio is reversed and remanded to said court for further proceedings consistent wi