Opinion
No. 74-766
Decided July 9, 1975.
Prohibition — Remedy not available, when — Adequate remedy of appeal available — Criminal law — Traffic regulations — R.C. 4911.21 — Speeding — Trial date.
APPEAL from the Court of Appeals for Knox County.
On June 3, 1974, appellant filed a complaint in the Court of Appeals for Knox County, seeking a writ of prohibition against appellee. Since the Court of Appeals disposed of the complaint by granting appellee's motion to dismiss, this court will assume, for the purpose of deciding this appeal, that the allegations set forth in the complaint are true.
Those allegations assert that on May 4, 1974, appellant was served with a summons charging him with a violation of R.C. 4511.21 (speeding), a minor misdemeanor. The summons ordered appellant to appear in the Mount Vernon Municipal Court on May 6, 1974. On that date, appellant, through counsel, appeared in court and entered a plea of not guilty. A trial date of June 12, 1974, was set. On May 24, 1974, appellant filed a motion to dismiss the case and to discharge him, contending that pursuant to R.C. 2945.71(A) the trial court lost jurisdiction over the case by failing to bring him to trial within 15 days after service of the summons. Appellee, the acting judge of the Municipal Court, overruled the motion. The present prohibition action was instituted shortly thereafter.
A violation of R.C. 4511.21 is not always classified as a minor misdemeanor. See R.C. 4511.99(D).
R.C. 2945.71(A) provides: "A person against whom a charge is pending in a court not of record, or against whom a charge of minor misdemeanor is pending in a court of record, shall be brought to trial within fifteen days after his arrest or the service of summons."
R.C. 2945.73(B) provides: "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 2945.71 and 2945.72 of the Revised Code."
The judgment entry filed by the Court of Appeals simply states "The petition does not state a cause of action in prohibition and is dismissed." An appeal as of right brings the cause to this court.
Messrs. Hite Hite and Mr. F. Richard Heath, for appellant.
Mr. David E. Railsback, city solicitor, for appellee.
Three general conditions must exist to support the issuance of a writ of prohibition: (1) The court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be unauthorized by law; and (3) it must appear that the refusal of the writ would result in injury for which there is no adequate remedy in the ordinary course of law. State, ex rel. McKee, v. Cooper (1974), 40 Ohio St.2d 65, 320 N.E.2d 286; State, ex rel. Nolan, v. Clen Dening (1915), 93 Ohio St. 264, 112 N.E. 1029.
Under the facts of this case, appellant has an adequate remedy in the ordinary course of the law to contest the trial court's overruling of his motion to dismiss. Appellant has been charged with committing a minor misdemeanor. The maximum penalty on conviction for this class of offense is a $100 fine. R.C. 2929.21(D). On May 6, 1974, two days after appellant was served with the summons in the speeding case, the Municipal Court set a trial date for June 12. Assuming that upon termination of this prohibition action the Municipal Court will reschedule the trial for the earliest possible date, the existence of a right to appeal the final order of the trial court provides this appellant with an adequate remedy at law. See State, ex rel. Wentz, v. Correll (1975), 41 Ohio St.2d 101, 322 N.E.2d 889; State, ex rel. Woodbury, v. Spitler (1974), 40 Ohio St.2d 1, 318 N.E.2d 165. Failure of the Municipal Court to reschedule the criminal trial in compliance with this opinion will prevent appellant from having an adequate remedy by way of appeal from the trial court's final judgment. See State, ex rel. Lotz, v. Hover (1962), 174 Ohio St. 68, 186 N.E.2d 841, writ withdrawn on other grounds, 174 Ohio St. 380, 189 N.E.2d 433; State, ex rel. Micheel, v. Vamos (1945), 144 Ohio St. 628, 60 N.E.2d 305.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.