City of Westlake v. Cougill
| Decision Date | 06 December 1978 |
| Docket Number | No. 78-350,78-350 |
| Citation | 10 O.O.3d 382,383 N.E.2d 599,56 Ohio St.2d 230 |
| Parties | , 10 O.O.3d 382 CITY OF WESTLAKE, Appellant, v. COUGILL, Appellee. |
| Court | Ohio Supreme Court |
On December 31, 1975, appellee-defendant drove an automobile which was involved in an accident in the city of Westlake, Ohio. Thereafter, on January 15, 1976, appellee received a summons in lieu of a warrant to appear in court for violation of Section No. 432.16 of the Codified Ordinances of Westlake, failure to yield the right of way, which is classified a fourth-degree misdemeanor.
On February 19, 1976, appellee appeared for trial, having entered a plea of not guilty to the charges on January 29, 1976. During the course of the trial, appellee moved to dismiss the pending cause on the ground that the Westlake ordinance was not in conformity with R.C. 4511.42. This motion was granted and the cause was dismissed.
Subsequently, it was discovered that the ordinance had been changed and that the cause had been mistakenly dismissed. Hence, on March 2, 1976, appellee was served with a second summons charging him with a violation of Section 432.16. On March 11, 1976, appellee appeared for arraignment, executed a "Waiver of Time for Trial" * and entered a plea of not guilty.
The cause came on for trial on April 8, 1976, and appellee moved to dismiss on the ground that his statutory right to a speedy trial had been violated, citing R.C. 2945.71 Et seq. The trial court overruled appellee's motion and held that the dismissal of the first cause against him "tolled" the operation of R.C. 2945.71. Trial was held and appellee was found guilty as charged.
Appellee appealed his conviction and, in a split decision, the Court of Appeals reversed the judgment of the trial court and held, Inter alia, that the statutory time for trial had elapsed prior to the execution of the waiver and prior to appellee's trial. Citing R.C. 2945.73, the court ordered that appellee be discharged.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Patrick A. Gareau, Law Director, and Daniel J. Kolick, Rocky River, for appellant.
Robert C. Kreps, Westlake, and Bruce T. Wick, Cleveland, for appellee.
The cause at bar presents two issues: (1) Whether the time within which appellee was required by R.C. 2945.71 Et seq. to be brought to trial expired prior to his waiver of the statutory mandate, and (2) whether the execution of the waiver form in this cause (which seeks a continuance and, by its title, purports to waive appellee's speedy trial rights under R.C. 2945.71, Et seq.) removed the case from the operation of those statutes.
R.C. 2945.71(B)(1) provides that an individual charged with a misdemeanor, other than a minor misdemeanor, must be brought to trial "(w)ithin forty-five days after his arrest or the service of summons, if the offense charged is a misdemeanor of the third or fourth degree * * *." Should the accused not be so brought to trial, after motion made at the commencement of or prior to trial, the General Assembly has decreed that he be discharged. R.C. 2945.73(B). Furthermore, this legislative discharge purports to operate as a bar to any further criminal proceedings arising out of the same conduct. R.C. 2945.73(D).
The majority of the Court of Appeals concluded that the applicable time within which appellant was required to bring the accused to trial was 45 days from service of summons, and that a total of 72 days expired before appellee was brought to trial. Although appellee had signed a waiver of his statutory speedy trial rights, the court found it unnecessary to resolve the issue of whether such a waiver was permitted under State v. Pudlock (1975), 44 Ohio St.2d 104, 338 N.E.2d 524, on the ground that the statutory time for trial had expired prior to the execution of the waiver.
The dissenting opinion in the Court of Appeals took exception to the method by which the majority calculated the number of days expiring under the statute. In her dissent, Judge Krupansky noted that only 44 days passed before the waiver was signed. Accordingly, it was necessary to rule upon...
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