State v. KingState v. King
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Criminal law -- Requirement for effective waiver of constitutional and statutory rights to speedy trial.
To be effective, an accused‘s waiver of his or her constitutional and statutory rights to a speedy trial must be expressed in writing or made in open court on the record. (State v. O‘Brien [1987], 34 Ohio St.3d 7, 516 N.E.2d 218, applied and followed; State v. Mincy [1982], 2 Ohio St.3d 6, 2 OBR 282, 441 N.E.2d 571, followed.)
(Submitted April 26, 1994)
Certified by the Court of Appeals for Stark County, No. CA-9131.
On February 25, 1992, plaintiff-appellant, the state of Ohio, charged defendant-appellee, Mary Ann King, with a violation of
Defendant‘s counsel contacted the prosecutor on May 11, 1992, seeking the prosecutor‘s approval for a motion to continue because defendant was having difficulty complying with a request for discovery. The record indicates that the prosecutor agreed to the motion, although there is some dispute as to whether he conditioned his approval on the defendant‘s agreement to sign a waiver to a speedy trial. Consequently, on May 18, 1992, defendant filed a motion for a continuance.
Some time after this exchange, defendant‘s counsel contacted the court to relay the prosecutor‘s agreement and eventually reached Vivian Miller, the trial judge‘s secretary. Miller informed counsel that before granting a continuance the judge‘s policy first was to obtain a time waiver. Again, however, the testimony reflects a disagreement regarding the substance of that conversation. Miller testified that defendant‘s counsel orally agreed to forward a signed time waiver to the court. In fact, Miller wrote and initialled a note on the case jacket, indicating counsel “will send time
Thereafter, apparently operating under the assumption that defendant had waived her right to a speedy trial, Miller notified the parties on or about July 7, 1992 that the court had rescheduled the trial for August 31, 1992. Shortly before then, on August 20, 1992, defendant filed a motion to dismiss for failure to comply with the speedy trial provisions of
Defendant subsequently pled no contest and was convicted of telephone harassment. She was sentenced to sixty days’ incarceration with all days suspended and fined five-hundred dollars.
On appeal, the court of appeals vacated defendant‘s conviction and sentence, ruling that a waiver of her right to a speedy trial does not appear in the trial judge‘s journal and that, therefore, the trial court erred in finding the oral waiver effective. The appeals court also found that the trial court erred in not granting defendant‘s motion to dismiss because the continuance was not journalized in accordance with the holding in State v. Mincy (1982), 2 Ohio St.3d 6, 2 OBR 282, 441 N.E.2d 571.
The court of appeals, finding its decision on the issue of a defendant‘s oral waiver of speedy trial rights to be in conflict with the decision of the Court of Appeals for Hancock County in State v. Hanes (June 27, 1991), Nos. 5-90-41 and 5-90-42, unreported, certified the record of the case to this court for review and final determination.
John A. Poulos, Canton City Prosecutor, and Francis G. Forchione, First Assistant City Prosecutor, for appellant. Augustin F. O‘Neil, for appellee.
Wright, J. The principal query before us is whether a defendant‘s oral waiver of speedy trial rights, which does not appear on the record, is effective. In the absence of such a waiver we also consider whether a trial court may sua sponte continue a defendant‘s trial beyond the expiration of the time limit prescribed in
It is well-settled law that an accused may waive his constitutional right to a speedy trial provided that such a
Our leading case considering the effect of waiving a defendant‘s right to a speedy trial is O‘Brien, supra. In O‘Brien, the defendant was charged with driving under the influence and signed an express written waiver of his statutory right to a speedy trial set forth in
From the court‘s decision in O‘Brien we can infer that a court‘s reliance on an unjournalized oral waiver, alleged or actual, is not effective. In fact, the cases in which we have considered and upheld the validity of a waiver of a defendant‘s right to a speedy trial involve circumstances in which the accused either expressly waived his or her right in writing or waived it in open court on the record. See State v. Kelley (1991), 57 Ohio St.3d 127, 566 N.E.2d 658 (guilty plea waives a defendant‘s right to challenge his or her conviction on statutory speedy trial grounds); State v. Adams (1989), 43 Ohio St.3d 67, 538 N.E.2d 1025 (written waiver of speedy trial rights as to an initial charge not applicable to subsequent applicable charges arising from the same circumstances); O‘Brien, supra (express written waiver, if voluntarily and knowingly made, may also constitute waiver of state and federal constitutional speedy trial rights); Montpelier v. Greeno (1986), 25 Ohio St.3d 170, 25 OBR 212, 495 N.E.2d 581 (guilty plea waives defendant‘s right to a speedy trial); State v. Bauer (1980), 61 Ohio St. 2d 83, 15 O.O.3d 122, 399 N.E.2d 555 (record discloses that defendant failed to appear for trial and thus waives his right to a speedy trial for the period of initial arrest to rearrest); Westlake v. Cougill (1978), 56 Ohio St.2d 230, 10 O.O.3d 382, 383 N.E.2d 599 (defendant effectively waived in writing his right to a speedy trial); and State v. McBreen, supra (defendant‘s counsel signed two “Waiver of Time Provisions” forms).
Applying this standard to the instant case, we find that appellee did not waive her statutory or constitutional rights to a speedy trial. A close review of the record reveals that neither appellee nor her trial counsel made an express written waiver or waived her rights to speedy trial in open court on the record. Therefore, we must affirm the holding of the court of appeals which ruled that the trial court erred in finding the appellee‘s alleged oral waiver effective.
But finding the alleged oral waiver to be ineffective does not answer the question of whether the court violated respondent‘s right to a speedy trial when it sua sponte continued appellee‘s trial date beyond the time limit set forth in
We embraced this construction in our decision in State v. Mincy (1982), 2 Ohio St.3d 6, 2 OBR 282, 441 N.E.2d 571. In Mincy, the trial court scheduled the defendant‘s trial for the eighty-seventh day after he had been charged, three days before the expiration of the statutory time within which a criminal defendant must be brought to trial. On the trial date, the court sua sponte continued the trial and did not record an entry on its journal explaining the reason for the continuance until after the statutory time period had expired. Conceding that “the time limit provisions of
In the case under consideration, it was incumbent upon the prosecutor to bring appellee to trial within ninety days of her being served. The trial court originally scheduled the trial for May 21, 1992, eighty-six days after she had been served.
It is axiomatic that “[i]n Ohio a court speaks through its journal.” State ex rel. Worcester v. Donnellon (1990), 49 Ohio St.3d 117, 118, 551 N.E.2d 183, 184. At a minimum, the trial court was required to enter the order of continuance and the reason therefor by journal entry prior to the expiration of the time limit prescribed in
Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E. Sweeney and Pfeifer, JJ., concur.