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finding that where the record reflected that there had been a previous continuance due to the unavailability of a witness and the prosecutor admitted that no proceedings had been attempted to secure the witness' attendance, those circumstances presented a "strong" indication that the prosecutor had not exercised due diligence in preparing to commence the trial within the speedy trial statutory period
Summary of this case from State v. BakerOpinion
No. 79-1354
Decided July 16, 1980.
Criminal law — Right to speedy trial — R.C. 2945.71 through 2945.73 not complied with, when.
APPEAL from the Court of Appeals for Cuyahoga County.
On September 2, 1977, the appellee, Michael S. Reeser, was arrested and incarcerated, and on September 26, 1977, he was indicted by a Cuyahoga County Grand Jury for the crime of aggravated robbery. Appellee entered a plea of not guilty to this indictment on September 30, 1977.
Trial was initially set to begin on November 7, 1977, but was continued until November 14, 1977, and again until November 21, 1977, because the trial court was engaged in another trial. On November 16, 1977, the prosecution requested a continuance until November 28, 1977, because of difficulty in arranging for the attendance of a witness from out of state. The trial court continued trial until November 28, 1977. On November 28, 1977, the appellee appeared for trial. The court continued the trial until December 5, 1977, because the prosecution witness was unavailable. Upon being informed that the statutory trial period would expire on December 1, 1977, the court modified the continuance to December 1, 1977, with the statement that "[t]he court's schedule is such that there is no way we can start this case on Thursday [12-1-1977]***." On December 1, 1977, the court sua sponte continued the trial until December 5, 1977, because the court was "***in trial in another case." On December 5, 1977, the court overruled appellee's motion for discharge for failure to commence trial within the time limit of 90 days from his arrest as provided by R.C. 2945.71 to 2945.73.
Trial was commenced on December 5, 1977, 94 days following the arrest of the appellee. He was found guilty of aggravated robbery and was sentenced.
Upon appeal, the Court of Appeals held that appellee was denied his statutory right to a speedy trial and reversed the judgment of conviction.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Thomas J. Wagner, for appellant.
Mr. Richard C. Foote, for appellee.
The issue in this cause is whether it was reasonable for the trial court, pursuant to R.C. 2945.72(H), to extend appellee's date of trial four days beyond the time limit prescribed in R.C. 2945.71(C)(2) and (D). See State v. Pudlock (1975), 44 Ohio St.2d 104, and State v. Lee (1976), 48 Ohio St.2d 208.
R.C. 2945.71(C)(2) and (D) provide:
"(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 (A), (B), and (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 further, in part:
"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:
"***
"(H) ***the period of any reasonable continuance granted other than upon the accused's own motion."
The continuance, as to prosecution of the case, was obviously necessary because the unavailable witness was the chief witness for the state's case. The record, reflecting a previous continuance having been granted the prosecution on November 16, 1977, 12 days before the hearing date of November 28, 1977, because the witness was unavailable and the admission by the prosecution that no proceedings had been attempted to secure and insure the attendance of the witness, presents a strong conclusion that due diligence had not been exercised by the prosecution in preparing to commence this trial within the statutory time period (R.C. 2945.71[C][2] and [D]). In a series of cases, this court has imposed upon the prosecution and the trial courts the mandatory duty of complying with R.C. 2945.71 through 2945.73. See State v. Pudlock, supra; State v. Cross (1971), 26 Ohio St.2d 270. The noticeable lack of timely effort on the part of the prosecution flies in the face of this mandate and any continuance granted because of this circumstance cannot be classified as a "***reasonable continuance granted other than upon the accused's own motion." (R.C. 2945.72[H].) The setting of the trial for December 1 with full knowledge that it could not proceed on that day was an obvious ploy to undercut R.C. 2945.71 through 2945.73. Such a practice has been prohibited by this court. See State v. Pudlock, supra.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, O'NEILL, SWEENEY and LOCHER, JJ., concur.
HERBERT and HOLMES, JJ., dissent.
O'NEILL, J., of the Seventh Appellate District, sitting for P. BROWN, J.