{¶ 2} On September 10, 2007, the Hardin County Grand Jury indicted Schmuck on one count of felonious assault in violation of R.C.
{¶ 3} On October 17, 2007, Schmuck, through counsel, filed a motion for discovery and motion for a bill of particulars, which items were provided by the State on October 24, 2007. (Doc. Nos. 11, 12, 14, 17). On January 30, 2008, just six days prior to the start of trial, Schmuck filed a motion for continuance, which the trial court granted on February 4, 2008, and the jury trial was rescheduled for May 1, 2008. (Doc. Nos. 21, 22, 25). *3
{¶ 4} However, on May 1, 2008, the day of the rescheduled jury trial, Attorney Grzybowski was allowed to withdraw as counsel because of a breakdown in communication with Schmuck. (Doc. Nos. 36, 37). As a result, the trial court rescheduled the jury trial to June 24, 2008, appointed new counsel, and charged all time against Schmuck. (Doc. No. 36, 38).
{¶ 5} On May 28, 2008, Schmuck's new appointed counsel, Howard A. Elliot, filed a discovery request and a motion for a bill of particulars, which were filed by the State on May 29, 2008. (Doc. Nos. 41, 42, 46). Thereafter, on June 18, 2008, Schmuck, through counsel, filed a motion for continuance of the jury trial, which the trial court granted and rescheduled for July 15-16, 2008. (Doc. Nos. 48-50).
{¶ 6} On July 14, 2008, one day before trial, Schmuck, acting pro-se and contrary to the advice of counsel, filed a motion to dismiss the indictment alleging that the State had failed to prosecute within the two hundred seventy (270) days provided under R.C.
{¶ 7} On July 16, 2007, Schmuck was found guilty by a jury of his peers. The following day, the trial court issued its judgment entry of conviction and sentence, sentencing Schmuck to three (3) years imprisonment, which was to be *4 served consecutively to Schmuck's sentence in Hardin County case no. 2006 2116CRI. (Doc. No. 63).
{¶ 8} On August 15, 2008, Schmuck filed an appeal to this Court alleging one assignment of error. (Doc. No. 67).
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT'S MOTION FOR DISMISSAL OF THE INDICTMENT BASED UPON THE VIOLATION OF DEFENDANT'S RIGHT TO A SPEEDY TRIAL.
{¶ 9} In his sole assignment of error, Schmuck argues that the trial court erred by denying his motion to dismiss the indictment based upon his right to a speedy trial found in R.C.
{¶ 10} The State, on the other hand, argues that Schmuck has waived any argument pursuant to R.C.
{¶ 11} Both the U.S. Constitution and the Ohio Constitution guarantee a criminal defendant the right to a speedy trial.
When a person has entered upon a term of imprisonment in a correctional institution of this state, and when during the continuance of the term of imprisonment there is pending in this state any untried indictment, information, or complaint against the prisoner, he shall be brought to trial within one hundred eighty days after he causes to be delivered to the prosecuting attorney and the appropriate court in which the matter is pending, written notice of the place of his imprisonment and a request for a final disposition to be made of the matter, except *6 that for good cause shown in open court, with the prisoner or his counsel present, the court may grant any necessary or reasonable continuance.
* * *
The written notice and request for final disposition shall be given or sent by the prisoner to the warden or superintendent having custody of him, who shall promptly forward it with the certificate to the appropriate prosecuting attorney and court by registered or certified mail, return receipt requested.
{¶ 12} Absent a written request by the defendant as prescribed under R.C.
{¶ 13} An Appellate Court's review of a speedy trial claim is a mixed question of law and fact. State v. Masters,
{¶ 14} Schmuck asserts that the State violated his speedy trial rights under R.C.
{¶ 15} A defendant's failure to file a motion to dismiss alleging speedy trial grounds waives the issue for purposes of appeal. State v.Harrison, 12th Dist. No. CA2006-08-028,
{¶ 16} Second, even if Schmuck had raised R.C.
{¶ 17} We also reject Schmuck's assertion that he was not provided proper notice of the charges against him along with notice of his right to request final disposition under R.C.
{¶ 18} The defendant in Fitch was indicted on October 31, 1984.
{¶ 19} On June 14, 1985, defendant filed a motion to dismiss the indictment alleging a violation of his speedy trial rights under R.C.
{¶ 20} On appeal, defendant-appellant Fitch asserted that the trial court had erred in denying his motion to dismiss for speedy trial violations. Id. The Court of Appeals for the Fifth District agreed and reversed. The Appellate Court reasoned that:
*10Although the appellant did receive a copy of a letter wherein the institution in which he was incarcerated acknowledged receipt of a letter from the Coshocton County Sheriff's Department stating that appellant would be taken into custody upon his release, the record is clear that appellant did not receive notice of his specific right under R.C.
2941.401 "to make a request for final disposition" of the pending indictment.
The state legislature, in its wisdom, has elected to obligate the state to notify the accused of his right to make a demand for speedy disposition of pending indictments as well as the fact of such indictments. It would nullify the entire purpose of the statute if failure to give notice of the right would operate to relieve the state of its legal burden to try cases within rule.
Absent such specific advice, the state cannot rely upon the prisoner's failure to make demand for speedy disposition but must count the time as having commenced upon the first triggering of the state's duty to give notice of the right to make demand for speedy disposition.
Id. at 162.
{¶ 21} The defendant in Dillon was indicted on November 21, 2003.
{¶ 22} On January 28, 2004, Dillon was transferred to the Ohio Corrections Reception Center ("C.R.C."). Id. at ¶ 5. A copy of the indictment was sent to C.R.C. on January 29, 2004 and, on February 4, 2004, a detective faxed the *11 warrant with specific instructions that it be served on Dillon; however, Dillon was never personally served with the indictment. Id.
{¶ 23} Early in March 2004, Dillon was transferred to the Pickaway Correction Institution, but, again, Dillon was not served with the indictment. Id. at ¶ 6. On April 9, 2004, Dillon signed a "wanted detainer," which indicated that he was wanted by both the Franklin and Delaware county sheriffs; however, this document did not specify the charges pending against him nor did it inform him of his right to demand a speedy disposition of the charges. Id. On April 16, 2004, Dillon was returned to the Franklin County jail where, again, he was not provided a copy of the indictment. Id. at ¶ 7.
{¶ 24} On August 13, 2004, Dillon was transported to Delaware County where, for the first time, he was served with a copy of the warrant and indictment, two hundred sixty six (266) days after he was indicted. On August 30, 2004, Dillon filed a motion to dismiss due to a speedy-trial violation. The trial court denied the motion, finding that Dillon was provided notice of his right to invoke speedy trial protections orally by the prosecutor.
{¶ 25} The Court of Appeals for the Fifth District disagreed and reversed, relying upon its decision in Fitch.
{¶ 26} This case, however, is distinguishable from Fitch andDillon for several reasons that we will discuss below. The Court of Appeals for the Fifth District was presented with a similar case to that presented here in State v. Cepec, 5th Dist. No. 2006 CA 80,
{¶ 27} The defendant in Cepec was indicted on one count of possession of a deadly weapon while under detention in violation of R.C.
{¶ 28} On November 7, 2005, a notice was mailed to the defendant informing him that a jury trial was scheduled for June 12, 2006 and pre-trial was scheduled for May 2, 2006. Id. at ¶ 6.
{¶ 29} On June 6, 2006, the defendant filed a motion to dismiss arguing that his R.C.
{¶ 30} The defendant subsequently waived his right to jury trial and the matter was tried to the bench on September 18, 2006. Id. at ¶ 8. The defendant was found guilty and sentenced to eight (8) months imprisonment. Id.
{¶ 31} On appeal, the defendant (appellant) argued that the trial court erred in overruling his motion to dismiss because he did not receive notice of his right to make request for final disposition as required under R.C.
{¶ 32} The Court distinguished this case from its prior decision inFitch on the basis that the defendant in Cepec, unlike the defendant inFitch, was provided a copy of the indictment and arraigned shortly (33 days) after he was indicted. Cepec,
* * * this also seems to be unnecessary in this case because the case was being processed toward final disposition and appellant had the right to request to be tried within 180 days of his notice to the prosecuting attorney and the court if he chose to do so. The statute only requires that a person be informed in writing of his right to make a request for final disposition. It does not require that he be informed of his right to a speedy disposition or of a disposition within 180 days.
Id.
{¶ 33} The facts of this case are similar to the Fifth District's case in Cepec. Like in Cepec, Schmuck was served with a copy of the indictment against him on October 12, 2007, thirty-two (32) days following his indictment by the Grand Jury. (Doc. No. 6). Also, like inCepec, Schmuck was arraigned on October 15, 2007, thirty-five (35) days following his indictment, which fails to indicate any delay in prosecution for which R.C.
{¶ 34} We also note that this case is further distinguishable fromDillon because there is nothing in the record to indicate that the prison warden here had knowledge of the pending indictment and failed to serve the indictment or written notice of defendant's right to request final disposition.
{¶ 35} Since Schmuck failed to request final disposition in accordance with R.C.
{¶ 36} For all the aforementioned reasons, the trial court did not err by overruling the motion to dismiss; and therefore, Schmuck's assignment of error is overruled.
{¶ 37} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed ROGERS and SHAW, J.J., concur.