State v. Cross

• Decision Date: 23 June 1971
• Docket Number: No. 70-413,70-413
• Citation: 26 Ohio St.2d 270,55 O.O.2d 495,271 N.E.2d 264
• Parties: , 55 O.O.2d 495 The STATE of Ohio, Appellant, v. CROSS, Appellee.
• Court: Ohio Supreme Court

Page 270

26 Ohio St.2d 270

271 N.E.2d 264, 55 O.O.2d 495

The STATE of Ohio, Appellant, v. CROSS, Appellee.

No. 70-413.

Supreme Court of Ohio.

June 23, 1971.

Syllabus by the Court

1. R.C. §§ 2945.71 and 2945.73 are valid legislative enactments, the provisions of which are mandatory and must be strictly complied with by the state. State v. Gray, 1 Ohio St.2d 21, 203 N.E.2d 319, approved and followed.

2. The mandatory duty of the state to try an accused within the times prescribed in R.C. §§ 2945.71 and 2945.73 is not affected by the accused's failure to demand a trial.

3. Where an accused files an application for discharge pursuant to R.C. § 2945.71, the sole fact that the state may then be ready to proceed to trial does not affect the accused's right to a discharge. (Paragraph three of the syllabus in Ex Parte McGehan, 22 Ohio St. 442, overruled in part.)

4. Nothing in R.C. § 2945.71 requires the filing of an application for discharge before expiration of the terms of court prescribed therein, and an accused's failure to file his application within that period does not affect his right to discharge under that section.

In 1968, the Court of Common Pleas of Cuyahoga County divided its judicial calendar into three terms of court, commencing on or about the first day of January, April, and September, respectively. The appellee was indicted during the January 1968 term. On February 7, 1969, during the third term after the term in which the indictment was presented, appellee filed a written application for discharge pursuant to R.C. § 2945.71.

It is uncontroverted that appellee was detained in jail continuously for a period of more than two terms of court after the term in which his indictment was presented, and that he made no demand for trial prior to his written application. It is also agreed that the state did not file any motion for a continuance of this cause.

The Court of Common Pleas granted appellee's application for discharge. Upon appeal, the Court of Appeals affirmed the judgment of the Common Pleas Court. The cause is before this court pursuant to the allowance of a motion for leave to appeal.

John T. Corrigan, Pros. Atty., and Harvey R. Monck, Cleveland, for appellant.

Edward R. Brown and William S. Cooper, Cleveland, for appellee.

HERBERT, Justice.

Section 10 of Article I of the Constitution of the state of Ohio provides, in pertinent part:

'* * * In any trial, in any court, the party accused shall * * * have * * * a speedy public trial * * *.'

The provisions of R.C. §§ 2945.71 to 2945.73 implement that constitutional guarantee ¹ and R.C. § 2945.71 provides 'No person shall be detained in jail without a trial for a continuous period of more than two terms after his arrest and commitment on an indictment or information, or, if he was in jail at the time the indictment or information was found, more than two terms after the term at which the indictment or information was presented. He shall be discharged unless a continuance is had on his motion or the delay is caused by his act.' (Emphasis added.) R.C. § 2945.73 provides:

'When application is made for the discharge of a person under section 2945.71 * * * of the Revised Code, if the court is satisfied that there is material evidence for the state which cannot be had, that reasonable effort has been made to procure it, and that there is just ground to believe that such evidence can be had at the next term, the cause may be continued and the prisoner remanded or admitted to bail. If he is not brought to trial at the next term thereafter, he shall then be discharged. The discharge of the accused under this section or section 2945.71 * * * of the Revised Code is a bar to further prosecution for the same offense.'

The state makes no claim that the provisions of R.C. § 2945.73, relative to a continuance, have any pertinence to the facts of this case.

The ultimate question to be determined in this appeal is whether, to be entitled to discharge under those sections, an accused must make formal written demand for trial at a time when his case could still be called for trial during the second term following the term in which he was indicted. We are here concerned only with the case of an accused who was continuously detained in jail without trial for a period longer than two terms of court following the term in which his indictment was presented, and who was so detained solely by reason of such indictment.

In granting appellee's application for discharge, the Court of Common Pleas relied upon our decision in State v. Gray (1964), 1 Ohio St.2d 21, 203 N.E.2d 319. Paragraph two of the syllabus of that case reads:

'Where an accused was in jail at the time an indictment was returned against him and was thereafter detained in jail solely because of that indictment and without any trial thereon for a continuous period of more than two terms of court after the term in which that indictment was presented, where such accused filed an application in the latter of such terms, and also in the succeeding term, to be discharged because of such detention, where no continuance of the cause was had on such accused's motion and no delay was caused by any act of such accused, and where the state does not contend that it had used any reasonable effort to procure or been unable to obtain material evidence for the state in time for trial within such two terms after the term in which such indictment was presented, such accused is entitled to discharge from any further prosecution under such indictment. * * *'

Before discussing the question of whether it is incumbent upon an accused, who may otherwise be entitled to a discharge under R.C. §§ 2945.71 and 2945.73, to make a written demand for trial within the prescribed two-term period, it should be noted that the state contends that the trial court's reliance upon the case of State v. Gray, supra (1 Ohio St.2d 21, 203 N.E.2d 319), was misplaced. It is argued that in Gray the accused did not cause any delay in bringing his case to trial, whereas the instant appellee did cause such delay. If this be so, R.C. § 2945.71 clearly would require our reversal of this cause. However, the question of whether an accused caused the delay mentioned in that section is one of fact for determination by the trial court and, in the case at bar, that court has absolved the appellee of any responsibility for the delays which ensued below. An examination of the record discloses sufficient evidence to support the trial court's conclusion in that regard.

In State v. Gray, supra, the accused, in addition to filing an application for discharge after the expiration of two terms of court, also took an affirmative step during the two-term period by filing an application for discharge under R.C. § 2945.71. In the case at bar, the accused did not file his application for discharge until the expiration of the time period prescribed in R.C. § 2945.71. The issue thus becomes whether an accused is entitled to discharge where the provisions of R.C. § 2945.71 have been met, but where an accused has not filed an application for discharge prior to the expiration of the time limit prescribed therein.

We think it clear that nothing in the language of either R.C. §§ 2945.71 or 2945.73 mandates the filing of an application for discharge thereunder during the second term after the term in which the indictment was presented. (Compare the concurring opinion of Taft, C. J., in State v. Gray, supra, at 27-28, 203 N.E.2d 319.)

The state also argues that appellee should not have been discharged because he failed to protect his right thereto by making a formal demand for trial upon his indictment at a time when his case could still be brought to trial within the time limit prescribed by R.C. § 2945.71. We find no statutory enactment requiring any such action by appellee.

We recognize that under R.C. § 2945.73, a discharge operates as a bar to any further prosecution of the accused on the same charge, irrespective of his guilt or innocence. The General Assembly has thus fashioned a severe sanction to be visited upon the state for the failure to bring an accused to trial within the prescribed time period. Additionally, that legislative body has chosen to implement the constitutional guarantee to a speedy trial by placing the burden squarely upon the state to bring an accused to trial within the prescribed time limits. As stated in paragraph one of the syllabus in State v. Gray, supra:

'Sections 2945.71 to 2945.73, inclusive, Revised Code, which prescribe the period of time a person may be detained in jail or held by recognizance without trial after an indictment or information has been returned, are valid legislative enactments, the provisions of which are mandatory and must be strictly complied with by the state.' (Emphasis added.)

It is not our purpose here to depart from the accepted premise that ordinarily the constitutionally announced right to a speedy trial is not denied unless a demand for trial has remained unsatisfied for an unreasonable period. Cf. State v. Meeker (1971), 26 Ohio St.2d 9, 268 N.E.2d 589. ² Furthermore we do not quarrel with the applicable paragraphs of the syllabi in State v. Cunningham (1960), 171 Ohio St. 54, 167 N.E.2d 897; Erwin v. State (1876), 29 Ohio St. 186; and Johnson v. State (1884), 42 Ohio St. 207, limited as they are to their own facts, except with regard to the approval of the third paragraph of the syllabus in Ex Parte McGehan, 22 Ohio St. 442, infra. Each of such cases is factually distinguishable from the instant cause. We do conclude, however, that R.C. §§ 2945.71 and 2945.73 provide an independent statutory proceeding, limited and controlled by their own terms, but unencumberable by a judicially legislated condition precedent.

The law announced in the second paragraph of the syllabus in State v. Gray, supra (1 Ohio St.2d 21, 203 N.E.2d 319), requires but a minimal alteration to comport with the facts...