Lead Opinion
Thе issue here is whether appellant is entitled to be discharged pursuаnt to R. C. 2945.73(B). R. C. 2945.71(C)(2) and (D) provide that a person
There is no dispute that appellant was tried 93 dаys after his arrest.
In affirming the trial court’s overruling of the motion to dismiss, the Court оf Appeals stated:
“By failing to call the court’s attention to the mistаke until the day scheduled for trial, there was acquiescence in thе trial date scheduled.”
This holding of the Court of Appeals is clearly in error. In State v. Singer (1977),
“A defendant’s failure to object to a trial date scheduled outside the 90-day limitation period of E. C. 2945.71 (C)(2) and (D), before the expiration оf that period, does not amount to acquiescence in the triаl date.”
The court stated further at pages 106-107 as follows:
“The burden is thus imposed upon the state to bring an accused to trial within the statutory period. The Court of Appeals erroneously rеquired appellant to object to the trial date prior to the expiration of the 90-day period, presumably so that the state сould rectify the error. Such requirement effectively, and erroneоusly, shifted the burden imposed by law on the prosecutor to the accused, and must not be allowed to stand.”
Appellee attempts to distinguish Singer on the grounds that in that ease the trial was held 102 days after arrest, but that in the cause at bar the trial was held 93 dаys after arrest due to a purported clerical error in the сomputation of time. There is no merit to this contention.
The Court of Aрpeals below attempted to extend the time limitation by means of E. C. 2945.72(D) and (H). E. C. 2945.72 provides that:
“The time within which an accused must be brought
(í* X #
“(D) Any period of delay occasioned by the nеglect or improper act of the accused;
a* * *
“(H) The periоd of any continuance granted on the accused’s own motion, and the period of any reasonable continuance granted оther than upon the accused’s own motion.”
The record discloses no delay occasioned by the neglect or improper act of appellant; therefore, Subdivision (D) cannot extend the 90-day limit. Subdivision (H) cannot extend the time limit because no continuance was ever granted by the trial court. Singer, supra, at page 109. Thus, the Court of Appeals’ use of these subdivisions constituted error.
The record is clear that appellant was not tried within the time limit of R. C. 2945.71(C)(2) and (D), and that no extension pursuаnt to R. C. 2945.72 is applicable. The record also discloses that appellant complied with the directive of R. C. 2945.73(B) which merely requires a defendant to file a motion for discharge at or prior to the commencement of trial.
This court imposes upon the prosecution and trial courts the mandatory duty of complying with R. C. 2945.71 through 2945.73. We do so pursuant to our conclusion that the General Assembly has attempted a ratiоnal definition of the statutory guarantee of a speedy trial.
A defendant in Ohio has both a constitutional right to speedy trial, based upon thе Sixth and Fourteenth Amendments to the United States Constitution, and a statutory right pursuant to R. C. 2945.71 through 2945.73. We accept this legislative directive, and will continue to do so, as long as these statutes effectively deal with factual situаtions in a manner -' consistent with constitutional standards. See Singer, supra, at pages 105-107; State v. MacDonald (1976),
Judgment reversed and appellant ordered discharged.
Dissenting Opinion
dissenting.
I dissent on the basis of my concurring opinion in State v. Pugh (1978),