594 N.E.2d 19 | Ohio Ct. App. | 1991
Defendant-appellant, Ronald E. Sharp, appeals from a judgment of the Marion Municipal Court, finding him guilty and sentencing him for operating a motor vehicle while under the influence of alcohol, a violation of R.C.
Due to the character of this appeal, a detailed explanation of the procedural history is required. On June 10, 1989, appellant, Ronald E. Sharp, was arrested for operating a motor vehicle while under the influence of alcohol or drugs of abuse, a violation of R.C.
R.C.
On June 30, 1989, a pretrial conference was held, at which time appellant orally requested a hearing on his refusal to submit to a chemical test. Consistent with local policy, his request was granted and a refusal hearing was scheduled for August 24, 1989. However, due to appellant's failure to file a written motion for a refusal hearing, the refusal hearing was not held. The matter was then scheduled for trial on September 11, 1989. On September 11, 1989, appellant filed a demand for a trial by jury. The trial assignment was vacated and the matter was reassigned for pretrial on September 25, 1989, and jury trial scheduled for October 4, 1989.
On September 15, 1989, the trial court, sua sponte, filed a "judgment entry tolling time," finding that for the purposes of the speedy trial statutes, time would be tolled from June 30, 1989 through August 24, 1989, and from September 11, 1989, through the next available date for trial. On September 21, 1989, pursuant to R.C.
On December 18, 1989, appellant withdrew his plea of not guilty and entered a plea of no contest and was found guilty. The trial court sentenced appellant to sixty days of imprisonment, fifty days of which was suspended, a $500 fine plus costs, $250 of which was suspended, a three-year suspension of his operator's license and two years of probation.
It is from this judgment that appellant appeals submitting one assignment of error which provides as follows:
"The trial court erred in not granting defendant's motion to discharge for the reason that he had not been brought to trial within 90 days following his arrest as required by O.R.C. Section
Appellant advances three arguments in support of his assignment of error. First, appellant asserts that none of the extensions under R.C.
For the reasons which follow we reject these arguments, overrule the assignment of error, and affirm the judgment of the trial court.
The
"(A) * * *
"(B) A person against whom a charge of misdemeanor, other than a minor misdemeanor, is pending in a court of record, shall be brought to trial:
"(1) * * *
"(2) Within ninety days after his arrest or the service of summons, if the offense charged is a misdemeanor of the first or second degree, or other misdemeanor for which the maximum penalty is imprisonment for more than sixty days."
R.C.
"(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; * * *."
R.C.
"(B) Upon motion 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
We will discuss appellant's first and third arguments together since they are related. First, we must analyze the suspension of appellant's driver's license under the provisions of R.C.
It is apparent that there are two fact situations which can result in a license suspension under the provisions of R.C.
In the case before us now, that record makes it quite clear that the license of appellant was suspended by the trial judge under the provisions of division (K). Therefore, any request by the appellant to have this suspension reviewed must necessarily take place in this criminal case, not in a separate civil proceeding with a new case number as argued by appellant. This brings us to the application of the provisions of R.C.
Appellant's second argument in support of his assignment of error is that the record of the trial court does not affirmatively demonstrate the necessity for a continuance before the time within which a trial could be held expired. It appears that appellant advances this argument because of his mistaken belief that none of the delays in this case were attributable to him. *341
In State v. Lee (1976),
"The record of the trial court must in some manner affirmatively demonstrate that a sua sponte continuance by the court was reasonable in light of its necessity or purpose."
The court continued at 210, 2 O.O.3d at 393,
"However, where the court, pursuant to R.C.
There is no dispute that the statutory time within which appellant was to be brought to trial in this case was ninety days, that he was arrested on June 10 and that the ninety-day period was to expire on September 8 unless there were permissible extensions under R.C.
In view of our analysis of the motion for a hearing on the refusal to consent to a test this argument must fail. The suasponte entry of September 15 was prior to the expiration of the time for trial because that calculation must be made after deducting the time from June 30 to August 24 which is attributable to appellant under R.C.
The time intervals in this case can be summarized as follows. From the date of arrest, June 10 to the date of first pretrial on June 30 is twenty days, all of which are attributable to the state. From July 1 to August 24 is a period of fifty-five days, all of which are attributable to appellant's motion to review the license suspension. From August 24 to September 11 is a period of eighteen days, all of which is attributable to the state because the case was pending trial to the court. On September 11 appellant filed a demand for a jury trial which resulted in further delay all of which is attributable to the *342 appellant. On September 21 appellant filed his motion to discharge for failure to provide him a speedy trial. At the time this motion was filed only thirty-eight days of the speedy trial time chargeable to the state had expired. Thus we conclude that the trial court correctly overruled the motion for discharge.
Having found no error prejudicial to appellant in any of the particulars assigned and argued, the judgment of the trial court is affirmed.
Judgment affirmed.
THOMAS F. BRYANT, P.J., and SHAW, J., concur.