701 N.E.2d 41 | Ohio Ct. App. | 1997
On August 28, 1996, prior to the commencement of trial, appellant made a motion to dismiss the case on the ground that he had not been brought to trial within the two-hundred-seventy-day time limit of R.C.
"Just briefly, your Honor, I haven't — since it was just was raised this morning, I haven't had time to research it obviously.
"I know I did check it before the case was reindicted last summer whenever, and at that point I know that we were pretty certain there was no time problem; and I would note for the record that every continuance that's been filed does indicate that Defendant waived his right to a speedy trial for the period of the continuance as to the pending charge or charges as well as any subsequent additional charge or charges which may arise from the same set of facts and circumstances as the initial charge; and it has always been the same set of facts and circumstances, and I believe that there are time waivers throughout the period on both cases that will be sufficient to waive the time that they are addressing."
"The trial court reserved ruling on the motion, and the case proceeded to a trial to the court. At the close of the evidence, the court found appellant guilty of unauthorized use of property, possession of criminal tools, and two counts of *67 tampering with evidence. The court found appellant not guilty of three other counts of tampering with evidence.
At the sentencing hearing, appellant's counsel reminded the court that, at the commencement of the trial, the court had taken its motion to dismiss based on lack of a speedy trial under advisement and that the motion was still pending. The trial court overruled the motion to dismiss without hearing any additional evidence. Appellant was then sentenced, fined, and given two days of jail credit. Appellant now brings this appeal asserting the following assignments of error:
"I. The trial court erred in overruling the defendant's motion to dismiss all charges based on the state's failure to bring him to trial within the 270 day limit of his arrest as required by
"II. The trial court erred in finding that a police radio was a computer as defined by
"III. The trial court erred in failing to find that the defendant had established the affirmative defense that defendant reasonably believed he was authorized to use and operate the property pursuant to
In his first assignment of error, appellant asserts that the trial court erred in overruling his motion to dismiss, since he was not brought to trial within the two-hundred-seventy-day time limit of R.C.
R.C.
"(C) A person against whom a charge of felony is pending:
"* * *
"(2) Shall be brought to trial within two hundred seventy days after his arrest.
"* * *
"(E) For purposes of computing time under divisions (A), (B), (C)(2), and (D) of this section, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days."
R.C.
"(B) Upon motion made at or prior to the commencement of trial, a person charged with an offense shall be discharged if he is not brought to trial within the time required by sections
"* * *
"(D) * * * When an accused is discharged pursuant to division (B) or (C) of this section, such discharge is a bar to any further criminal proceedings against him based on the same conduct." *68
In State v. Butcher (1986),
In this case, appellant was arrested on December 3, 1993, and his trial commenced on August 28, 1996. The date of trial is obviously beyond the two-hundred-seventy-day time limit in which to bring appellant to trial as set forth in R.C.
At the time the motion to dismiss was presented to the trial court, it was incumbent upon the state to demonstrate to the court that appellant's speedy trial rights had not been violated. The state could have met its burden by way of records, including, but not limited to, court records, journal entries, or jail *69 records. See Butcher. However, in this case, the state presented no evidence to sustain its burden of proof. In fact, the record unequivocally demonstrates the state's failure to properly introduce any evidence to rebut appellant's prima facie motion for discharge.2
In this court, the state now attempts to rebut appellant's prima facie case by including in the appendix to its brief all of the entries for continuances filed both in the original case, 94CR-05-2938, which was later nol-prossed, and the case before us, 95CR-06-3892. These records should have been presented to the trial court and introduced into evidence. The entries in case No. 94CR-05-2938 are not in the record of the case before us, 95CR-06-3892, and, thus, cannot be considered by this court. SeePrairie Twp. Bd. of Trustees v. Stickles (Feb. 22, 1996), Franklin App. No. 95APC07-941, unreported, 1996 WL 76229, andSingh v. Holfinger (Jan. 29, 1991), Franklin App. No. 90AP-639, unreported, 1991 WL 10936.
The Ohio Supreme Court has repeatedly held that the requirements of R.C.
Appellant's first assignment of error is sustained, and the remaining assignments of error are rendered moot. The judgment of the Franklin County Court of Common Pleas is reversed, and appellant is ordered discharged pursuant to R.C.
Judgment reversed.
JOHN C. YOUNG and PEGGY BRYANT, JJ., concur.
"The time within which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may be extended only by the following:
"(A) Any period during which the accused is unavailable for hearing or trial, by reason of other criminal proceedings against him, within or outside the state, by reason of his confinement in another state, or by reason of the pendency of extradition proceedings, provided that the prosecution exercises reasonable diligence to secure his availability;
"(B) Any period during which the accused is mentally incompetent to stand trial or during which his mental competence to stand trial is being determined, or any period during which the accused is physically incapable of standing trial;
"(C) Any period of delay necessitated by the accused's lack of counsel, provided that such delay is not occasioned by any lack of diligence in providing counsel to an indigent accused upon his request as required by law:
"(D) Any period of delay occasioned by the neglect or improper act of the accused;
"(E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused;
"(F) Any period of delay necessitated by removal or change of venue pursuant to law;
"(G) Any period during which trial is stayed pursuant to an express statutory requirement, or pursuant to an order of another court competent to issue such order;
"(H) The period of any continuance granted on the accused's own motion, and the period of any reasonable continuance granted other than upon the accused's own motion;
"(I) Any period during which an appeal filed pursuant to section