State v. Bowman

• Decision Date: 09 November 1987
• Docket Number: No. CA87-03-029,CA87-03-029
• Citation: 41 Ohio App.3d 318,535 N.E.2d 730
• Parties: The STATE of Ohio, Appellee, v. BOWMAN, Appellant. *
• Court: Ohio Court of Appeals

Page 318

41 Ohio App.3d 318

535 N.E.2d 730

The STATE of Ohio, Appellee, v. BOWMAN, Appellant. ^*

No. CA87-03-029.

Court of Appeals of Ohio, Twelfth District, Clermont County.

Nov. 9, 1987.

Syllabus by the Court

1. When a criminal defendant moves for a psychiatric examination pursuant to R.C. 2945.39 and 2945.371, the running of the time limit for trial is tolled when the motion is granted, not when it is made. If a report of a psychiatric examination is not filed when due, time begins to run again after the due date.

2. The triple-count provision of R.C. 2945.71(E) applies to a criminal defendant held in jail in lieu of bail and charged with multiple counts under a single indictment, if all counts are to be tried in a single trial.

George E. Pattison, Pros. Atty., and Lawrence R. Fisse, Batavia, for appellee.

Michael A. Kennedy, Bucyrus, for appellant.

PER CURIAM.

This cause came on to be heard upon the appeal from the Court of Common Pleas of Clermont County.

Defendant-appellant, Brandon Bowman, appeals from his conviction on three counts of gross sexual imposition in violation of R.C. 2907.05(A)(3). He raises the following as assignments of error:

First Assignment of Error:

"The trial court erred to the prejudice of the Defendant-Appellant by overruling his motion for dismissal/discharge for failure to bring the defendant to trial within the time limits set out by R.C. 2945.71."

Second Assignment of Error:

"The trial court erred to the prejudice of the Defendant-Appellant by excluding all evidence of prior sexual abuse of the prosecuting witness and prior sexual acts of the prosecuting witness."

Regarding the first assignment of error, the speedy trial statute in Ohio provides that any person against whom a felony charge is pending must be brought to trial within two hundred seventy days after his or her arrest. R.C. 2945.71(C)(2). Under R.C. 2945.73(B), the consequence of failing to bring an accused to trial within the statutory time period is that the accused shall be discharged.

The accused establishes a prima facie case for discharge upon showing that two hundred seventy days have elapsed. State v. Geraldo (1983), 13 Ohio App.3d 27, 13 OBR 29, 468 N.E.2d 328, paragraph one of the syllabus. The state then bears the burden of demonstrating that any of the subsections of R.C. 2945.72 tolled or extended the time limit for bringing the accused to trial. The extensions of time under R.C. 2945.72, however, are to be strictly construed against the state. State v. Singer (1977), 50 Ohio St.2d 103, 109, 4 O.O.3d 237, 240, 362 N.E.2d 1216, 1220.

In the case sub judice, appellant was arrested on April 23, 1985. His trial, however, in which appellant was convicted of three counts of gross sexual imposition and acquitted of one count of rape, did not take place until January 28, 1987. During this time period, six hundred forty-five days elapsed before the commencement of appellant's trial. Therefore, to avoid a discharge of appellant's conviction, the state must show that the time period was extended so that some of the two hundred seventy days remained at the time of appellant's trial.

On April 23, 1985, appellant was arrested pursuant to an indictment charging him with one count of rape in violation of R.C. 2907.02 and three counts of gross sexual imposition in violation of R.C. 2907.05(A)(3). On May 20, 1985, appellant filed a motion to conduct a psychiatric examination pursuant to R.C. 2945.39 and 2945.371 in order to determine his mental condition at the time of the commission of the alleged offense and to determine his competency to stand trial. On this date, appellant also entered pleas of not guilty and not guilty by reason of insanity.

The trial court, on May 24, 1985, granted appellant's motion for a psychiatric evaluation and ordered a written report of the evaluation to be filed within thirty days as provided by statute. Pursuant to State v. Wilson (1982), 7 Ohio App.3d 219, 7 OBR 281, 454 N.E.2d 1348, paragraph two of the syllabus, the time was tolled from the date the motion was granted, not from the date the motion was requested. Thus, from April 23 to May 24, 1985, thirty-one days are charged against the state. ¹

The psychiatric evaluation was due to be filed with the court on June 23 1985. The record, however, does not indicate the report was ever filed. Therefore, under State v. Wilson, supra, the time period began to run again after June 23, 1985 when the date for the filing of the report had passed.

The time period was tolled on June 25, 1985 when appellant filed a motion to suppress evidence. Accordingly, two days are charged against the state. The motion was heard on July 8, 1985 at which time counsel for appellant indicated the motion would be withdrawn. By a judgment entry filed July 15, 1985, the trial court accordingly denied appellant's motion to suppress. Because appellant actually withdrew his motion on July 8, any time after that date could not be attributed to delay caused by appellant's motion. For this reason, the time chargeable to the state began to run on July 8, 1985 and was not tolled until September 24, 1985 when a competency hearing was scheduled to be heard. The hearing, however, was reset due to the absence from the hearing of counsel for appellant. The state, however, argues that counsel for appellant stipulated that time was tolled on September 18 instead of September 24, 1985. There is nothing in the record to indicate appellant or his counsel waived this period of time. Because any extensions of time must be strictly construed against the state and there is no record of any stipulation to the contrary, we find time was tolled on September 24, 1985. Accordingly, during this period from July 8 through September 24, seventy-eight days elapsed that were chargeable against the state.

Appellant's competency hearing was rescheduled from September 24 until November 1, 1985 due to appellant's request. Thus, the time was tolled from September 24 to the November 1 date. At the competency hearing the trial court found that, based upon the psychiatric report which was provided to counsel but never filed with the court, appellant was competent to stand trial. After this hearing, the time period began to run until November 29, 1985, at which time a plea hearing was scheduled. Appellant, however, requested a continuance of the plea hearing thereby tolling the time period. Twenty-eight days elapsed from November 1 through November 29 which were chargeable against the state.

January 30, 1986 is the next date that anyone acting on behalf of appellant appeared in court. On that date, the trial court ordered a second psychiatric evaluation of appellant pursuant to R.C. 2945.371. The report was to be filed within thirty days. Again, no report was ever filed and so, as stated in State v. Wilson, supra, the period was no longer tolled after the thirty days had expired. Thus, after March 1, 1986, time began to run and was not tolled until June 4, 1986 when the trial court ordered a third psychiatric evaluation. Thus a total of ninety-five days elapsed between March 1 and June 4, 1986, and are chargeable against the state.

The time count was tolled for thirty days from the June 4 order, and commenced again on July 5, 1986. Appellant then filed a motion to dismiss on August 4, 1986, resulting in thirty-one days being charged against the state from July 5 through August 4. Again, the state contends appellant stipulated time should be tolled on July 28 instead of August 4, 1986. Having found nothing in the record to affirmatively show appellant waived this period of time, however, we find that the time period was not tolled until August 4, 1986.

The trial court filed its decision denying appellant's motion to dismiss on October 9, 1986. On this same day, appellant requested a rehearing on the motion to dismiss. The rehearing was held October 20, 1986 and the trial court filed its decision denying the motion to dismiss on December 8, 1986. The entry on the motion to dismiss, however, was not filed until December 22, 1986. Since this time delay in filing the entry is not attributable to appellant, time once again commences for speedy trial purposes on December 8, 1986. Thereafter, time was not tolled until January 15, 1987 when appellant filed a motion to suppress. As a result, thirty-eight days are counted against the state during this period from December 8, 1986 through January 15, 1987. As there is no indication from the record that this motion was ever ruled upon before the start of appellant's trial on January 28, 1987, none of this time counts against the state for speedy trial purposes.

In computing the foregoing time periods, we arrive at a total of three hundred days chargeable to the state under the speedy trial statute. Although the statutory time period has been exceeded by counting the time period using single days, we are compelled to address whether the triple-count provision of R.C. 2945.71(E) should have been applied.

R.C. 2945.71(E) states that, for purposes of computing time under the speedy trial statute, " * * * each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days. * * * " In the case sub judice, appellant was continuously held in jail from the time of his arrest until his trial. Both the state and counsel for appellant, however, apparently determined the triple-count provision was inapplicable relying on this court's previous decisions in State v. Cassidy (Dec. 2, 1985), Clermont App. No. CA85-05-036, unreported and State v. McCarty (Oct. 21, 1985), Clermont App. No. CA84-12-090, unreported . See, also, State v. Rudd (Mar. 2, 1987), Clermont App. No. CA86-05-036, unreported . In these cases, we held the triple-count provision of R.C. 2945.71(E) does not apply to a criminal defendant held in jail in lieu of bail on two charges even though the charges are contained in one indictment...