Opinion
No. 78-443
Decided January 24, 1979.
Criminal law — Right to speedy trial — Defendant entitled to discharge, when.
APPEAL from the Court of Appeals for Mahoning County.
Defendant was arrested on August 23, 1976, and charged with aggravated robbery, a violation of R.C. 2911.01(A)(1). A preliminary hearing was held in Municipal Court on September 3, and defendant was bound over to the grand jury which indicted him on September 29 for aggravated robbery.
At his arraignment before the Court of Common Pleas of Mahoning County on October 8, 1976, and while represented by counsel, defendant pleaded not guilty. On October 22, defendant filed a motion to suppress and, after a hearing on December 28, at which he was represented by counsel, his motion to suppress was overruled.
On April 15, 1977, after he had received notice of the setting of a trial date, defendant filed a motion to dismiss, claiming that he had been denied a speedy trial. Three days later that motion was overruled, and, following a jury trial, defendant was found guilty as charged.
On appeal, the Court of Appeals reversed the judgment of the Court of Common Pleas on the ground that defendant had been denied a speedy trial. A majority of the Court of Appeals held that R.C. 2945.72(H) cannot "extend the 90 day limit provided by R.C. 2945.72(C)(2) and (D) unless the trial court grants a continuance by entry prior to the expiration of time limit provided by R.C. 2945.71."
As pertinent here, R.C. 2945.71 provides as follows:
"(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.
"(D) For purposes of computing time under divisions * * * (C) 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. 2945.72 provides, in part, that:
"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:
"* * *
"(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;
"* * *
"(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."
The allowance of the state's motion for leave to appeal brings the cause to this court for review.
Mr. Vincent E. Gilmartin, prosecuting attorney, and Mr. John A. Kicz, for appellant.
Messrs. Breckenridge Haynes and Mr. E. Winther McCroom, for appellee.
The state argues, in effect, that representations made to the trial court by defense counsel that he was unable to proceed with the case until a later time "serve[d] to extend the time for trial pursuant to * * * Section 2945.72" where the trial was, in fact, scheduled for a later date.
The record does show statements by counsel for the state concerning other litigation in which defense counsel was involved, and remarks by the trial court as to causes for the delay in trial. Nowhere, however, is there any entry granting a continuance in the setting of a trial date.
Between December 28, 1976, when the trial court overruled defendant's motion to suppress, and April 15, 1977, the date defendant's motion to dismiss for lack of speedy trial was filed, the trial court made no order or entry either setting defendant's trial within the time limitations of R.C. 2945.71 or granting a continuance (with facts demonstrating the necessity and reasonableness of such continuance).
In the recent case of Elmwood Place v. Denike (1978), 56 Ohio St.2d 427, this court held that "a standardized entry form completed by the trial court * * * is alone insufficient to support a sua sponte continuance order substantially extending the date of trial beyond the mandatory time limitations of R.C. 2945.71(B)(2). * * * The * * * evidence of record is insufficient to demonstrate the necessity of a continuance for purposes of appellate review. * * *" (Emphasis added.) The court concluded that "because the sua sponte continuance order of the trial court * * * was not supported by sufficient detail contained in the record, the judgment" must be reversed. (Emphasis added.)
In State v. Wentworth (1978), 54 Ohio St.2d 171, this court held that the order of a trial court continuing defendant's case for trial beyond the statutory time limitations for reason of a crowded docket "without further explication of such reason appearing in the record" is insufficient to extend the time limitations of R.C. 2945.71(B)(2).
In Elmwood Place and in Wentworth entries appear in the records giving reasons for the continuance of trial dates. In the present cause, however, there is no entry in the record ever setting a trial date within the time limits provided in R.C. 2945.71 or giving any reason for the date of defendant's trial being substantially beyond such time limitations.
This court has "imposed upon the prosecution and the trial courts the mandatory duty of complying with R.C. 2945.71 through 2945.73" and held that "the burden is * * * on the state to bring an accused to trial within the statutory period." State v. Singer (1977), 50 Ohio St.2d 103, 105, 106.
Therefore, in accordance with this court's holdings in Elmwood Place and Wentworth, supra, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY and MCCORMAC, JJ., concur.
HERBERT, J., dissents.
HOLMES, J., not participating.
MCCORMAC, J., of the Tenth Appellate District, sitting for LOCHER, J.