State v. Bonarrigo

• Decision Date: 02 April 1980
• Docket Number: No. 79-494,79-494
• Citation: State v. Bonarrigo, 62 Ohio St.2d 7, 402 N.E.2d 530, 16 O.O.3d 4 (Ohio 1980)
• Parties: , 16 O.O.3d 4 The STATE of Ohio, Appellant, v. BONARRIGO et al., Appellees.
• Court: Ohio Supreme Court

Page 7

62 Ohio St.2d 7

402 N.E.2d 530, 16 O.O.3d 4

The STATE of Ohio, Appellant, v.BONARRIGO et al., Appellees.

No. 79-494.

Supreme Court of Ohio.

April 2, 1980.

On June 23, 1976, appellees, Joseph Bonarrigo and Glen Pauley, were arrested in connection with a disturbance in Cleveland.On June 24, complaints alleging that appellees were guilty of disorderly conduct, a misdemeanor, were filed in the Cleveland Municipal Court.Appellees posted bail and were released from jail on June 24.

It appears that on November 10, 1976, the prosecution sought to enter a nolle prosequi of the disorderly conduct charges pending in the Municipal Court.¹It is clear that on the same date, November 10, indictments were filed in the Court of Common Pleas charging appellees and others with one count of aggravated riot, a felony, and two counts of assault, a misdemeanor, based on the conduct for which appellees were arrested on June 23.The Sheriff of Cuyahoga County served appellees with a copy of the indictment, and they were arraigned on November 24, 1976.

On February 11, 1977, appellees filed a motion in the Court of Common Pleas to dismiss the indictment for the reason that they had been denied their right to be tried within the time limits set forth in R.C. 2945.71 to 2945.73, inclusive.The court held a hearing on appellees' motion on February 16, at which time it granted the motion to dismiss as to the misdemeanor assault charges, but overruled the motion to dismiss as to the felony charge contained in the indictment.

On June 3, 1977, appellees again filed a motion to dismiss the aggravated riot felony count.The record before us does not reflect any formal action taken by the court on the June 3rd motion.Jury trial commenced, however, on June 16, 1977.Both appellees were found not guilty of aggravated riot, but guilty of lesser-included offenses.Appellee Pauley was found guilty of disorderly conduct, a minor misdemeanor, and was fined $100 and costs.Appellee Bonarrigo was found guilty of disorderly conduct and of persisting in such conduct after reasonable warning to desist, a misdemeanor of the fourth degree.He was fined $250 and costs.

The Court of Appeals held that appellees were denied their statutory right to a speedy trial and reversed the judgments of conviction.

The cause is before this court upon allowance of a motion for leave to appeal.

John T. Corrigan, Pros.Atty., George J. Sadd and Alban Lipold, Cleveland, for appellant.

Paul Mancino, Jr., Cleveland, for appellees.

PER CURIAM.

Appellees were arrested on June 23, 1976.Their trial commenced on June 16, 1977, 358 calendar days from the date of arrest.The state has not argued that any of the contingencies set forth in R.C. 2945.72 occurred in this case thereby extending the statutory time within which these accused were required to be brought to trial.The period of 358 days is, of course, in excess of the 270 days in which those accused of even the most serious felony charges must, according to R.C. 2945.71(C)² be brought to trial, absent extension.Pursuant to R.C. 2945.73(B), ³appellees moved "at or prior to the commencement of trial" on February 11, 1977(the 233rd calendar day from arrest), and on June 3, 1977(the 345th calendar day from arrest) to dismiss the charges based on the June 23, 1976, conduct for which they were arrested.Thus, appellees were seemingly entitled to discharge.

The state argues, however, that the word "arrest" in R.C. 2945.71(C) refers to an arrest incident to a felony charge, and, in effect, that appellees are not entitled to credit for the period of approximately four and one-half months during which the misdemeanor charge of disorderly conduct stemming from the same conduct had been pending in the Municipal Court.The state argues that trial was timely because it commenced within 270 days after the date the indictment was returned, after which time a "charge of felony * * * (was) pending."

In State v. Spratz(1979), 58 Ohio St.2d 61, 62, at fn. 2, 388 N.E.2d 751, we expressly noted that the entry of a nolle prosequi on a felony charge tolled the running of statutory speedy trial time until such time as the accused was re-indicted.Similarly, in Westlake v. Cougill(1978), 56 Ohio St.2d 230, 383 N.E.2d 599, we excluded from the computation of speedy trial time a period between a nolle prosequi of misdemeanor charges and the service of summons of a second filing of misdemeanor charges arising out of the same conduct.In both cases, credit was given the accused for the period of time the charges based on the same conduct were pending prior to entry of the nolle prosequi.⁴

We see no reason why a different result should obtain here merely because the disorderly conduct charge pending prior to the nolle is categorized as a misdemeanor, and the aggravated riot charge pending subsequent to the indictment is categorized as a felony.Such a construction would subvert the policy of the speedy trial statutes by automatically providing prosecutors a new 270-day period in which to bring an accused to trial, irrespective of the amount of unexplained delay involved in the prior misdemeanor proceedings.

Appellees, on the other hand, argue that the state was barred from indicting them for aggravated riot at any time after the lesser-included charge of disorderly conduct had been pending beyond the applicable time limitations of R.C. 2945.71.The argument has no merit.It is not the mere passage of time which bars further criminal proceedings against an accused.If this were the case every conviction obtained after the expiration of the statutory time would be reversible.Rather, pursuant to R.C. 2945.73, such a bar is contingent upon discharge accomplished upon motion made at or prior to trial.Thus, where entry of a nolle prosequi is made prior to the filing of a defense motion to dismiss the same charges, the prosecution is not barred from initiating new criminal proceedings.Although it is primarily the duty of the court and the prosecution to prevent the speedy trial period from expiring, it is not unreasonable to expect the accused as well to keep track of the time and to be diligent in seeking the benefits of the speedy trial provisions.

The General Assembly has chosen to enforce the speedy trial statutes by providing an accused with a right to dismissal of charges upon timely motion, when not accorded trial within the statutory time.It was not the General Assembly's sole purpose in enacting the speedy trial statutes to reward those accused of criminal conduct for a prosecutor's lack of diligence.Concededly, an accused has a valid interest in, and an independent constitutional right to, a speedy trial.However, in construing the speedy trial statutes, this court also recognizes the public's interests not only in the prompt adjudication of criminal cases, but also in obtaining convictions of persons who have committed criminal offenses against the state.

Consistent with these interests, we hold that, where a prosecutor obtains a felony indictment, based upon the same conduct as was a previously nolled, lesser-included misdemeanor charge, the time within which the accused shall be brought to trial pursuant to R.C. 2945.71 et seq. consists of whatever residue remains from the 270-day period set forth in R.C. 2945.71(C) after deducting the speedy trial time expended prior to the nolle prosequi.Such a holding adequately protects the accused's statutory rights.⁵To accept the appellees' argument would unjustifiably prevent the state from prosecuting an accused where, for instance, subsequent discovery revealed that a more serious offense than first anticipated may have been committed.

The filing of felony indictments did significantly extend the period of time in which appellees' trial was required to be held, i. e., from 45 days ⁶ to 270 days.However, the subsequent filing of aggravated riot charges after the disorderly conduct charges were nolled did not subject the appellees to double jeopardy.The nolle prosequi was entered prior to commencement of trial and, thus, prior to the attachment of jeopardy.Appellees have suggested no other basis upon which it can be argued that the state's escalation of the charges was improper.

Our holding will not require, as the state argues, the reversal of every felony conviction based on the same conduct as was a previously nolled misdemeanor charge for failure to have provided the accused a preliminary hearing within 15 days of his arrest.⁷A dismissal granted for failure to accord a timely preliminary hearing has the same effect as does a nolle prosequi (R.C. 2945.73(D)), and thus is a dismissal without prejudice to the initiation of further criminal proceedings.The return and filing of an indictment constitutes the commencement of such new criminal proceedings.However, Crim.R. 5(B) provides that a "preliminary hearing shall not be held * * * if the defendant is indicted."Thus, a valid indictment can be returned subsequent to either a nolle prosequi or a dismissal of prior felony charges for failure to provide a preliminary hearing within 15 days of the initial arrest.SeeState v. Pugh(1978), 53 Ohio St.2d 153, 372 N.E.2d 1351, concurring opinion, per Justice Paul W. Brown, at page 159, and dissenting opinion per Justice William B. Brown, at page 160, ⁸372 N.E.2d 1351.

It remains for us to apply the foregoing principles to the facts of the cause sub judice.Appellees were arrested on June 23, 1976, and charged with a misdemeanor.In the absence of circumstances justifying an extension of time pursuant to R.C. 2945.72, appellees were entitled to a discharge with prejudice as to any further criminal proceedings based upon the same conduct, upon the filing any time subsequent to 45 days after arrest and prior to the commencement of trial of a defense motion asserting such entitlement.In the absence of such a motion, the state properly could, and on ...