Opinion
No. 74-752
Decided February 12, 1975.
Mandamus — Remedy not available, when — Adequate remedy of appeal available.
APPEAL from the Court of Appeals for Stark County.
On March 10, 1974, appellant was charged, in the Canton Municipal Court, with operating a motor vehicle while under the influence of alcohol, a violation of R.C. 4511.19. On March 11, while represented by counsel, he pleaded not guilty and demanded a jury trial. A pretrial hearing was held on May 9, with appellant's counsel participating, and, on May 21, counsel was notified that the case was set for jury trial on June 18.
On June 13, appellant moved for "dismissal of the charges * * * for the reasons that the state of Ohio has failed to bring him to trial within the time prescribed by" R.C. 2945.73(B). That motion was overruled.
R.C. 2945.73(B), effective when appellant's motion was filed, provided:
"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."
R.C. 2945.71 and 2945.72, as applicable here, are analogous to former R.C. 2945.71 and 2945.72, repealed in 134 Ohio Laws H511.
Appellant then instituted an action in mandamus in the Court of Appeals praying that respondents, judges of the Canton Municipal Court, be ordered to discharge him. The Court of Appeals dismissed the petition "because it does not state facts warranting relief in mandamus. See R.C. 2945.72(H)."
R.C. 2945.72.
"The time within which 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."
An appeal as of right from that dismissal brings the cause to this court for review.
Mr. Don E. Caplea, for appellant.
Mr. Harry K. Klide, city solicitor, and Mr. Ronald E. Stocker, for appellees.
Following the filing of his appeal in this court, appellant sought a stay of proceedings pending disposition of the appeal. A stay was denied, and, on October 4, 1974, appellant was tried by a jury and found guilty.
In State, ex rel. Woodbury, v. Spitler (1974), 40 Ohio St.2d 1, a case in which mandamus was sought in the Court of Appeals to compel relators' discharge on the ground that they were denied a speedy trial under R.C. 2945.71 et seq., this court held that relators had "an adequate remedy by way of appeal from the final judgments of the trial court," and affirmed the Court of Appeals' dismissal of the complaint. See State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141.
The dismissal of the complaint by the Court of Appeals was for the reason that the "proceedings [appeals and actions seeking writs of prohibition and mandamus] instituted by the appellants were acts instituting delay within the meaning of R.C. 2945.71 et seq." See fn. 3.
This court sua sponte raised the issue of whether mandamus was the proper remedy in Woodbury.
Here, appellant has an adequate remedy available by way of appeal from his conviction.
Accordingly, on authority of State, ex rel. Woodbury, v. Spitler, supra, 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.