City of Cincinnati v. Williams

Decision Date28 April 1975
Citation44 Ohio App.2d 143,73 O.O.2d 137,336 N.E.2d 464
Parties, 73 O.O.2d 137 CITY OF CINCINNATI, Appellee, v. WILLIAMS, Appellant.
CourtOhio Court of Appeals

Syllabus by the Court

The language of R.C. 2945.71 is preemptory and mandatory, directing that an accused by brought to trial within the time specified, and it is not necessary for a defendant to object to the setting of a trial date forty-five days beyond the time of his arrest before requesting a discharge pursuant to R.C. 2945.73.

Thomas A. Luebbers, Cincinnati, Paul J. Gorman, Cleveland, and John DiPuccio, Cincinnati, for appellee.

Morris G. Sullivan, Cincinnati, for appellant.

COLE, Judge.

On February 4, 1974, the defendant, the appellant herein, was charged with a violation of Section 909-1 of the Cincinnati Municipal Code prohibiting certain acts of public indecency. On April 17, 1974, a motion to dismiss was filed on the grounds that this constituted a fourth degree misdemeanor, and that under R.C. 2945.71(B)(1) a person charged with a fourth degree misdemeanor must be tried within 45 days after he is arrested or served with a summons. The date of arrest is shown on the docket sheet in the record as February 3, 1974. We can find no entry of disposition of this motion in the record. However, the docket sheet again shows a hearing on April 22, 1974. At this hearing, the court overruled the motion orally on the ground the defendant was present with counsel when the trial date was set and failed to object to the trial date then set, which was beyond the 45 day period.

Thereafter, he was found guilty and on May 20, 1974, was sentenced. On May 20th, a Notice of Appeal was filed from the judgment and sentence with specific reference to the order on the motion to dismiss.

R.C. 2945.71 became effective January 1, 1974. It provides in part:

'B. A person against whom a charge of misdemeanor, other than a minor misdemeanor, is pending in a court of record, shall be brought to trial:

'1. Within forty-five days after his arrest * * * if the offense charged is a misdemeanor of the third or fourth degree * * *.'

This is a specific mandate by the legislature as to the time for trial. Extensions of this period are governed solely by R.C. 2945.72. No continuance was granted on the accused's own motion and no reasonable ground was asserted or is demonstrated by the record for any continuance made other than upon the accused's own motion. Although it may be possible to continue a case on the court's own motion, there must affirmatively appear some reasonable ground for such action. None here appears. No other grounds for delay in R.C. 2945.72 appear applicable. The sole ground asserted by the court for denying the motion to dismiss was that no objection was made by the accused to the order setting the case for trial at this belated time.

At no...

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12 cases
  • State v. Summers
    • United States
    • Ohio Court of Appeals
    • October 28, 1981
    ...635 [74 O.O.2d 229]; Oakwood v. Ferranti (1975), 44 Ohio App.2d 318, 338 N.E.2d 767 [73 O.O.2d 374]; Cincinnati v. Williams (1975), 44 Ohio App.2d 143, 336 N.E.2d 464 [73 O.O.2d 137]. The state has a heavy burden of sustaining the constitutionality of a warrantless search and seizure, e.g.,......
  • City of Cleveland v. Austin
    • United States
    • Ohio Court of Appeals
    • February 2, 1978
    ...of the trial." (Emphasis added.) See also, State v. Coatoam (1975), 45 Ohio App.2d 183, 341 N.E.2d 635; Cincinnati v. Williams (1975), 44 Ohio App.2d 143, 336 N.E.2d 464. In the present case, defendant made an oral motion for discharge prior to the start of his trial and was thus in complia......
  • State v. Huckaby
    • United States
    • Ohio Court of Common Pleas
    • August 5, 1997
    ...by the defendant himself before it may be said to be his "own motion." However, the same court, in Cincinnati v. Williams (1975), 44 Ohio App.2d 143, 73 O.O.2d 137, 336 N.E.2d 464, one month before, held that it is not necessary for a defendant to object to the setting of a trial beyond tim......
  • State v. Paul Mitchell
    • United States
    • Ohio Court of Appeals
    • June 13, 1991
    ... ... v. Cross (1971), 26 Ohio St. 2d 270. See also ... Cincinnati v. Williams (1975), 44 Ohio App ... 2d 143; Cleveland v. Austin , ... supra ; ... ...
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