362 N.E.2d 1216 (Ohio 1977), 76-788, State v. Singer

Docket Nº76-788.
Citation362 N.E.2d 1216, 50 Ohio St.2d 103
Opinion JudgePAUL W. BROWN, J.
Party NameThe STATE of Ohio, Appellee, v. SINGER, Appellant.
AttorneyRichard E. Bridwell, Pros. Atty., Joseph A. Gormley and Warren B. Richardson, Zanesville, for appellee. Mr. Richard E. Bridwell, prosecuting attorney, Mr. Joseph A. Gormley, and Mr. Warren B. Richardson, for appellee., Messrs. Schwartz, Fisher, Spater, McNamara & Marshall, and Mr. Leonard J. Schw...
Judge PanelC. WILLIAM O'NEILL, C. J., and WILLIAM B. BROWN, SWEENEY and LOCHER, JJ., concur. CELEBREZZE, J., dissents.
Case DateMay 18, 1977
CourtSupreme Court of Ohio

Page 1216

362 N.E.2d 1216 (Ohio 1977)

50 Ohio St.2d 103

The STATE of Ohio, Appellee,

v.

SINGER, Appellant.

No. 76-788.

Supreme Court of Ohio.

May 18, 1977

Page 1217

Syllabus by the Court

A defendant's failure to object to a trial date scheduled outside the 90-day limitation period of R.C. 2945.71(C)(2) and (D), Before the expiration of that period, does not amount to acquiescence in the trial date.

Sherril Edward Singer, appellant, was arrested on Several felony charges on December 20, 1974, and was subsequently held in jail in lieu of bail at all times pertinent to this case. A preliminary hearing was held on December 27, 1974, at which appellant was represented by retained counsel. On January 6, 1975, appellant was indicted along with ten others by the grand jury.

Arraignment for these individuals was held January 10, 1975. Although appellant was present, his counsel was not. Upon receiving the indictment on January 8, appellant mailed a copy of it to his attorney. However, the attorney received neither the indictment in time to be present at the arraignment, nor, evidently, notice of the arraignment from the clerk of courts. Appellant was excused by the trial court without entering a formal plea at arraignment, since his counsel was not present.

Sometime between January 10 and January 15, the court scheduled a pretrial conference for January 27. The clerk of courts mailed notice to appellant's counsel on January 15, and counsel was present at the scheduled [50 Ohio St.2d 104] pretrial. On January 29, written pleas of not guilty and not guilty by reason of insanity were filed. During the latter part of February, the trial date was set for April 1, 1975.

On March 24, prior to his trial, appellant filed a motion for discharge, pursuant to R.C. 2945.73(B), alleging that the time failed to bring him to trial within the time required by R.C. 2945.71. The motion was denied on March 26. Appellant renewed the motion on April 1, his scheduled trial date, and the motion was again denied. Appellant appealed to the Court of Appeals for Muskingum County, but that court denied the appeal as being interlocutory.

Appellant was then re-scheduled for trial on May 9, 1975, but, prior to this date, he filed for a writ of habeas corpus in the Court of Appeals. The writ was denied on May 28, and motions for reconsideration and new trial were overruled on June 6.

Appellant appealed the denial of the writ to this court, which affirmed because habeas corpus was not proper remedy (45

Page 1218

Ohio St.2d 130, 341 N.E.2d 849); direct appeal is the proper remedy to test the validity of a denial of a motion for discharge.

Appellant, meanwhile, was tried as scheduled on May 9 and was convicted of all charges in the indictment. He then appealed to the Court of Appeals, which continued the appeal pending the decision by this court on the habeas corpus action. Subsequently, on May 27, 1976, the Court of Appeals affirmed the trial court.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Richard E. Bridwell, Pros. Atty., Joseph A. Gormley and Warren B. Richardson, Zanesville, for appellee.

Schwartz, Fisher, Spater, McNamara & Marshall and Leonard J. Schwartz, Columbus, for appellant.

PAUL W. BROWN, Justice.

The issue here is whether appellant is entitled to a discharge pursuant to R.C. 2945.73(B). [50 Ohio St.2d 105]

R.C. 2945.71(C)(2) and (D) provide that a person charged with a felony and held in jail on the pending charge in lieu of bail shall be brought to trial within 90 days after his arrest, unless such time limitation is extended by R.C. 2945.72. R.C. 2945.73(B) provides that upon motion at or prior to trial, an accused shall be discharged if not brought to trial within the required time period. 1

Appellant was arrested and jailed on December 20, 1974, and was originally scheduled for trial on April 1, 1975, 102 days after his arrest. Appellant concedes that no time periods subsequent to April 1, 1975, are relevant since they constitute extensions pursuant to R.C. 2945.72.

The Court of Appeals affirmed the denial of the motion for discharge stating, 'where, within the required period pursuant to R.C. 2945.71, the case is set for trial for a date after the expiration of the required period, and the defendant is given ample notice thereof, he may not sit idly by and let the time within which he is to be brought to trial expire and then take advantage of the provisions of R.C. 2945.73(D) (sic 2945.73(B)).'

This holding of the Court of Appeals is clearly in error. In a series of cases, we have imposed upon the prosecution and the trial courts the mandatory duty of complying with R.C. 2945.71 through 2945.73. See, e. g., State v. Pudlock (1975), 44 Ohio St.2d 104, 338 N.E.2d 524; State v. Cross (1971), [50 Ohio St.2d 106] 26 Ohio St.2d 270, 271 N.E.2d 264; State v. Gray (1964), 1 Ohio St.2d 21, 203 N.E.2d 319. We do so pursuant to our conclusion that the General Assembly's definition of the trial court's obligation to guarantee a speedy trial is a rational one which we will enforce. See State v. MacDonald (1976), 48 Ohio St.2d 66, 71, 357 N.E.2d 40. This action implements the constitutional right to a speedy trial. 2

Page 1219

State v. Pudlock, supra, 44 Ohio St.2d at page 105, 338 N.E.2d 524.

Under R.C. 2945.71 through 2945.73, an accused's statutory right to a speedy trial is not affected by his failure to demand a trial. State v. Cross, supra. A defendant's not objecting to a trial date outside the 90-day limit before the expiration of the period is not substantively different from failing to demand a trial, and such failure or election not to object does not result in his acquiescence in the trial date.

The burden is thus imposed on the state to bring an accused to trial within the statutory period. The Court of Appeals erroneously required appellant to object to the trial date prior to the expiration of the 90-day period, presumably so that the state could rectify the error. Such requirement [50 Ohio St.2d 107] effectively, and erroneously, shifted the burden imposed by law on the prosecutor to the accused, and must not be allowed to stand.

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. Appellant first made his motion on March 24, after the expiration of 90 days but certainly prior to trial. He renewed this motion on April 1, the scheduled trial date. Since a prior objection is not expressly required by the statute, we will not interpret that one is necessary to preserve the right to move for discharge.

We accept the legislative directive of R.C. 2945.71 through 2945.73, and will continue to do so, as long as thses statutes effectively deal with factual situations is a manner consistent with constitutional standards. See Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101.

As alternative propositions, appellee argues that the 90-day limit imposed by R.C. 2945.71 was extended in this...

To continue reading

Request your trial
228 practice notes
  • 573 N.E.2d 77 (Ohio 1991), 90-1331, Cline v. Ohio Bur. of Motor Vehicles
    • United States
    • Ohio United States State Supreme Court of Ohio
    • July 10, 1991
    ...analysis is not complete. Legislative intent must be determined from the language of the statute itself, id.; State v. Singer (1977), 50 Ohio St.2d 103, 108, 4 O.O.3d 237, 240, 362 N.E.2d 1216, 1220, as well as from other matters, see R.C. 1.49. In determining intent, it is the duty of the ......
  • 601 N.E.2d 547 (Ohio App. 11 Dist. 1991), 90-L-15-134, State v. Beam
    • United States
    • Ohio United States Court of Appeals (Ohio)
    • September 16, 1991
    ...are irrelevant to determining whether a violation of the statutory right to a speedy trial has occurred. In State v. Singer (1977), 50 Ohio St.2d 103, 4 O.O.3d 237, 362 N.E.2d 1216, the defendant argued that the charges against him should have been dismissed because he had not been brought ......
  • In re E.W., 042611 OHCA4, 10CA18
    • United States
    • Ohio United States Court of Appeals (Ohio)
    • April 26, 2011
    ...(2) to serve that public interest which mandates the prompt disposition of all cases before the courts." State v. Singer (1977), 50 Ohio St.2d 103, 109-110, 362 N.E.2d 1216. Courts have interpreted the Rules of Superintendence as general guidelines for the conduct of the courts that do......
  • State v. Monroe, 032207 OHCA4, 05CA3042
    • United States
    • Ohio United States Court of Appeals (Ohio)
    • March 22, 2007
    ...motion. {¶26} The state bears the burden of bringing an accused to trial within the statutorily required time. State v. Singer (1977), 50 Ohio St.2d 103, 105-06, 362 N.E.2d 1216. When reviewing speedy trial issues, we are presented with a mixed question of law and fact. State v. Hiatt (1997......
  • Request a trial to view additional results
228 cases
  • 573 N.E.2d 77 (Ohio 1991), 90-1331, Cline v. Ohio Bur. of Motor Vehicles
    • United States
    • Ohio United States State Supreme Court of Ohio
    • July 10, 1991
    ...analysis is not complete. Legislative intent must be determined from the language of the statute itself, id.; State v. Singer (1977), 50 Ohio St.2d 103, 108, 4 O.O.3d 237, 240, 362 N.E.2d 1216, 1220, as well as from other matters, see R.C. 1.49. In determining intent, it is the duty of the ......
  • 601 N.E.2d 547 (Ohio App. 11 Dist. 1991), 90-L-15-134, State v. Beam
    • United States
    • Ohio United States Court of Appeals (Ohio)
    • September 16, 1991
    ...are irrelevant to determining whether a violation of the statutory right to a speedy trial has occurred. In State v. Singer (1977), 50 Ohio St.2d 103, 4 O.O.3d 237, 362 N.E.2d 1216, the defendant argued that the charges against him should have been dismissed because he had not been brought ......
  • In re E.W., 042611 OHCA4, 10CA18
    • United States
    • Ohio United States Court of Appeals (Ohio)
    • April 26, 2011
    ...(2) to serve that public interest which mandates the prompt disposition of all cases before the courts." State v. Singer (1977), 50 Ohio St.2d 103, 109-110, 362 N.E.2d 1216. Courts have interpreted the Rules of Superintendence as general guidelines for the conduct of the courts that do......
  • State v. Monroe, 032207 OHCA4, 05CA3042
    • United States
    • Ohio United States Court of Appeals (Ohio)
    • March 22, 2007
    ...motion. {¶26} The state bears the burden of bringing an accused to trial within the statutorily required time. State v. Singer (1977), 50 Ohio St.2d 103, 105-06, 362 N.E.2d 1216. When reviewing speedy trial issues, we are presented with a mixed question of law and fact. State v. Hiatt (1997......
  • Request a trial to view additional results