City of Oregon v. Harold D. Kohne, 97-LW-0021

• Decision Date: 10 January 1997
• Docket Number: L-96-199,97-LW-0021
• Parties: City of Oregon, Appellee v. Harold D. Kohne, Appellant Court of Appeals
• Court: Ohio Court of Appeals

City of Oregon, Appellee v. Harold D. Kohne, Appellant

No. L-96-199

97-LW-0021 (6th)

Court of Appeals of Ohio, Sixth District Lucas

January 10, 1997

Trial Court No. 96TRC00575

Thomas Dugan, for appellee.

Lorin Zaner, for appellant.

DECISION

This is an accelerated appeal from the Oregon Municipal Court. The sole assignment of error is:

"The trial Court erred by denying Defendant's Motion to Dismiss, thus violating his constitutional right to a speedy trial."

The case was submitted to this court on an agreed statement of facts and on the docket and journal entries in this case. The standard of review in a speedy trial appeal is quite simple. The court merely counts the days chargeable to either side and determines whether the case was tried within the time limits set by R.C. 2945.71.

The chronology of the relevant dates in this case are as follows.

6-2-95 Defendant arrested and charged with vehicular homicide, DUI, and having a passenger on the outside of the vehicle.

6-23-95 Defendant bound over to the Grand Jury on the vehicular homicide charge. DUI and passenger misdemeanor charges dismissed.

8-11-95 Grand Jury returns a no bill on the vehicular homicide charge.

3-15-96 Misdemeanor charges refiled and Defendant arraigned.

5-21-96 Motion to dismiss overruled. No contest plea entered. Defendant found guilty.

There were various filings between March 15, 1996, and May 21 1996, and counsel have argued about how they should be charged in calculating the speedy trial time, but they are not relevant here. March 15th is the seventy-fifth day of the year, and May 21st is the one hundred forty-second, which is sixty-seven days. When one includes the time between June 2 1995, the day of arrest, and June 23, 1995, the day the two misdemeanors were dismissed, this is twenty-one more days for a total of eighty-eight days. The speedy trial time for prosecution of these two misdemeanors is ninety days. Thus even if all the days between arraignment on the refiled misdemeanors and the trial are charged against the state there has been no denial of a speedy trial.

The only issue before this court is whether the days between June 24, and August 11, 1995, when the matter was pending before the grand jury, are chargeable against the speedy trial deadlines.

We find that they do.

The first paragraph in the syllabus in State v. Broughton (1991), 62 Ohio St. 3d 253, provides,

"For purposes of computing how much time has run against the State under R.C. 2945.71 et seq., the time period between the dismissal without prejudice of an original indictment and the filing of a subsequent indictment, premised on the same facts alleged in the original indictment, shall not be counted unless the defendant is held in jail or released on bail pursuant to Crim. R. 12(I)." (Emphasis added.)

We emphasized that phrase in the above syllabus because this is the standard which the Supreme Court used in Broughton. In that opinion, the court surveyed some of its previous holdings on speedy trials. In Westlake v. Cougill (1978), 56 Ohio St.2d 230, it held that the time between the dismissal of a misdemeanor and its refiling is not chargeable to the speedy trial deadline. In State v. Spratz (1979), 58 Ohio St.2d 61, the same rule was applied to the nolle of a felony indictment and the date of reindictment. Id. at 62, fn. 2. In State v. Bonarrigo (1980), 62 Ohio St.2d 7, which is quoted in Broughton, the court laid out the underlying rationale for this line of cases. The court said that although a person who is under investigation but not subject to any formal charge may be anxious or apprehensive, he is no longer under any restraint and is free to come and go as he pleases. It is the formal...