State v. Deckard

Decision Date26 December 1972
Citation33 Ohio App.2d 240,62 O.O.2d 352,295 N.E.2d 205
Parties, 62 O.O.2d 352 The STATE of Ohio, Appellee, v. DECKARD, Appellant.
CourtOhio Court of Appeals

George C. Smith, Pros. Atty., and Eugene Paul Weiss, Columbus, for appellee.

Tyack, Scott & Colley, Columbus, for appellant.


This is an appeal from an order of the Franklin County Court of Common Pleas overruling defendant's application for discharge filed pursuant to R.C. 2945.72 and 2945.73.

Defendant was indicted on June 8, 1971 and arraigned on the indictment on June 18, 1971. On July 27, 1971, defendant filed three motions: the first, to suppress; the second, for a bill of particulars; and the third, to require plaintiff to produce certain drugs for analyzation. The latter two motions were sustained by the trial court on November 19, 1971, and the ruling on the motion to suppress was apparently reserved until immediately prior to trial.

The case was scheduled to be tried November 29, 1971, but the trial was continued upon the request of the state. The case apparently was reassigned for trial on March 22, 1972, and was again continued upon the application of the state by an entry approved by counsel for defendant. This was during the third term after the term in which the indictment was returned. Defendant was not detained in jail but had been admitted to bail and was 'held by recognizance' within the meaning of R.C. 2945.72.

Apparently, the trial was not rescheduled during the January term, the third term after the term in which the indictment was returned. Defendant was not detained in June 13, 1972, during the May 1972 term, the fourth term after the term in which the indictment was returned. On May 31, 1972, defendant filed his application for discharge pursuant to R.C. 2945.72, contending that he was entitled to discharge because he had not been tried within three terms after the term in which the indictment was returned, and he was held by recognizance thereon. Thereafter, upon the motion of the plaintiff, the trial was again continued from June 13, 1972, to July 24, 1972, which was also in the May 1972 term. On July 20, 1972, the trial court entered its order overruling the motion for discharge. Defendant appeals setting forth two assignments of error as follows:

'I. The trial court erred in ruling that defendant was not entitled to discharge under authority of 2945.72, Revised Code.

'II. The trial court erred in making certain findings of fact without permitting defendant to present evidence on those issues.'

In support of his contention that he should be discharged, defendant relies upon State v. Gray (1964), 1 Ohio St.2d 21, 203 N.E.2d 319, and State v. Cross (1971), 26 Ohio St.2d 270, 271 N.E.2d 264. Neither of those cases involved the application of R.C. 2945.72 with respect to persons 'held by recognizance,' but, rather, involved the application of R.C. 2945.71 with respect to persons 'detained in jail.' A distinction between the two situations was recognized in each case. In Gray it is stated in the opinion, at page 24, 203 N.E.2d at page 321:

'It appears clear that the General Assembly intended to distinguish between rights accorded an accused person 'detained in jail' and one admitted to bail, when it enacted Sections 2945.71 and 2945.72 of the Revised Code.'

R.C. 2945.72 provides that where a person has been held by recognizance without trial for a period of more than three terms, he 'shall be discharged unless a continuance is had on his motion, or the delay is caused by his act, or there is not time to try him at such third term, in which case he shall be brought to trial at the next term or be discharged.' R.C. 2945.71 provides essentially the same with regard to persons detained in jail without trial, but the period limitation is two terms, and there are no exceptions made for situations where there is not time to bring the defendant to trial. This additional exception in the recognizance cases is of significance.

In neither Gray nor Cross were any continuances granted to either the state or the defendant. There were also expressed findings in both cases that the defendant had not caused delay by his act. In Cross, it is stated in the opinion, at page 274, 271 N.E.2d at page 267:

'* * * 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. * * *'

The trial court made a factual determination that the defendant was entitled to discharge. The Supreme Court affirmed.

Furthermore, both Gray and Cross distinguished State v. Cunningham (1960), 171 Ohio St. 54, 167 N.E.2d 897, a recognizance case. In Cross, it was stated, at page 276, 271 N.E.2d at page 268 of the opinion: '* * * 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. * * *'

In Cunningham, the defendant was indicted at the April 1956 term. He was not brought to trial during the remaining two terms of 1956, nor in the three terms of 1957. In the January 1958 term, the defendant, by motion, raised the issue of his not having been tried within three terms. The trial court overruled the motion, expressly finding that there was material evidence which the state had made had made a reasonable effort to procure, but had been unable to do. The court further found that there was reason to believe 'that such evidence can be had at the next term, or even during the present term of court.' The defendants were not brought to trial during the next term, the April 1958 term. Rather, they were brought to trial during the September 1958 term, the seventh term after the term in which the indictment was returned. At the beginning of the September 1958 term, the defendants again made motions to quash the indictment, relying upon R.C. 2945.72. The trial court overruled these motions, the Court of Appeals reversed, and the Supreme Court reversed the Court of Appeals and affirmed the trial court, stating that that court 'was correct in refusing to discharge the appellees.'

The Supreme Court decision in Cunningham was predicated, in part, upon a continuance entry which, by stipulation, was before that court but was not included in the record before the court of appeals. That entry was entered at the end of the April 1958 term and continued all cases, both criminal and civil, which were pending and not disposed of, to the September term of court. With respect to such continuance, the Supreme Court stated, in the second and third paragraphs of the syllabus of Cunningham, that:

'2. Where a criminal cause is continued without disclosing the ground for such continuance, it will be presumed that the continuance was upon sufficient ground, in the absence of anything in the record to the contrary, notwithstanding the provisions of Sections 2945.72 and 2945.73, Revised Code. (Paragraph one of the syllabus of Johnson v. State, 42 Ohio St. 207, approved and followed.)

'3. The provisions of Section 2945.73, Revised Code, deny the power to grant to the state more than one continuance by reason of the absence of material evidence, but the granting of one continuance for that reason does not deprive the court of the power to continue the cause again for the reasons stated in Section 2945.72, Revised Code, notwithstanding that the accused asks to be discharged under such sections. (Paragraph two of the syllabus of Johnson v. State, 42 Ohio St. 207, approved and followed.)'

While there is no indication in the record as to whether or not the Franklin County Court of Common Pleas by general entry continued all pending criminal cases from the January to the May term, Cunningham does indicate that continuances may be considered in determining whether an accused...

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4 cases
  • State v. Huckaby
    • United States
    • Ohio Court of Common Pleas
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    ...known to the proper officers that he claims an early trial, so that his innocence may be established.' " In State v. Deckard (1972), 33 Ohio App.2d 240, 62 O.O.2d 352, 295 N.E.2d 205, the Franklin County Court of Appeals found that "[a]cquiescing in a continuance sought by the state constit......
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    ...the attention of the court he cannot, with respect to a subsequent delay, be heard to claim prejudice. See State v. Deckard (1972), 33 Ohio App.2d 240 at 245, 295 N.E.2d 205 at 208: 'The delay caused by the act of the accused within the contemplation of R.C. 2945.72 is not limited to a wron......
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    ...Ohio App. 30, 153 N.E.2d 203; 2 Ohio Jurisprudence 2d 631, Appellate Review, Section 56. Defendant cites the case of State v. Deckard, 33 Ohio App.2d 240, 295 N.E.2d 205, which was an appeal from an order of the Franklin County Court of Common Pleas overruling defendant's application for di......

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