State v. Eberhardt

• Decision Date: 13 April 1978
• Citation: 381 N.E.2d 1357,10 O.O.3d 197,56 Ohio App.2d 193
• Parties: , 10 O.O.3d 197 The STATE of Ohio, Appellee, v. EBERHARDT, Appellant.
• Court: Ohio Court of Appeals

Page 193

56 Ohio App.2d 193

381 N.E.2d 1357, 10 O.O.3d 197

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

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

April 13, 1978.

Syllabus by the Court

1. Under Ohio's speedy trial statutes, where a person against whom a felony charge is pending is held in jail in lieu of bail, such person must be brought to trial within ninety days after arrest unless the time for trial is extended by one or more provisions of R.C. 2945.72(A) through (H). R.C. 2945.71-73.

2. Where an accused has been incarcerated since his arrest and due to clerical error the statutory time period for bringing him to trial has been allowed to expire and where none of the provisions of R.C. 2945.72 is applicable to extend the time for trial, then pursuant to R.C. 2945.73, the accused is, as a matter of law, entitled to be discharged and any further criminal proceedings against him based upon the same conduct are barred.

3. R.C. 2945.72(H) does not give the trial court blanket discretion to extend the time in which an accused must be brought to trial. R.C. 2945.72(H) provides for an extension of the time for trial during the period of any continuance granted on the accused's own motion and during the period of any reasonable continuance granted on other than the accused's motion. Before this provision of R.C. 2945.72 is applicable, the court by journal entry must have granted such continuance prior to the expiration of the statutory time limitations for trial.

4. As a general rule, neither an order overruling a motion to dismiss nor the entry of a Nolle prosequi in a criminal case is a final appealable order. However, where the record demonstrates that the state failed to afford an accused a timely trial and the accused was therefore entitled to be discharged, but the trial court overruled a motion to dismiss and subsequently allowed a Nolle prosequi to be entered in the case, the order denying dismissal is a final appealable order because it affected a substantial right and under the circumstances in which it was rendered it in effect determined the action and prevented a judgment within the meaning of R.C. 2505.02.

John T. Corrigan, Pros. Atty., for appellee.

Thomas E. Frye, Cleveland, for appellant.

KRENZLER, Presiding Judge.

The defendant-appellant, Kenneth Eberhardt, hereinafter referred to as the appellant, was indicted by the Cuyahoga County Grand Jury on June 10, 1976. The indictment's sole count charged the appellant with aggravated robbery, R.C. 2911.01. At his arraignment on August 2, 1976, the appellant entered a plea of not guilty to the charge.

The factual background to the institution of criminal proceedings against the appellant is not disputed between the parties. The appellant was arrested on May 11, 1976, by the Cleveland Police for the crime of aggravated robbery. Bond was set but was not posted to enable the appellant's release on bail. As a result, the appellant was held in custody on the above charge from May 11, 1976, until October 14, 1976.

On September 2, 1976, the appellant filed a motion to dismiss the indictment for failure to afford him a speedy trial as required by the Sixth Amendment to the United States Constitution and Section 10, Article I, Ohio Constitution and by Ohio's speedy trial statutes. R.C. 2945.71 through 2945.73.

A hearing was held on the motion to dismiss; and on October 4, 1976, the motion was overruled by the court. In its journalized decision, the trial court determined that the appellant was arrested on May 11, 1976, and had been incarcerated since that date due to a clerical error. The trial court determined that it had discretion to overrule the motion for discharge under R.C. 2945.72(H) which provides:

"The time within which an accused must be brought to trial * * * may be extended only by the following: * * *

"(H) The period of any continuance granted on the accused's own motion, and the period of any reasonable continuance granted other than upon the accused's own motion."

The record shows that prior to the filing of the motion to dismiss no motion for a continuance had been made by either the appellant or the state and no entry had been made by the court continuing the case for any reason. The record also shows that shortly after the trial court denied the motion to dismiss a Nolle prosequi was entered on the indictment at the state's request.

On October 24, 1976, the appellant filed a notice of appeal to challenge the proceedings against him.

In effect, the appellant's sole assignment of error is that due to the combination of the denial of the motion to dismiss and the interposition of the Nolle prosequi in the case plus the facts in the record demonstrating that he was not brought to trial within the statutory time limits solely because of clerical error, he was entitled to a dismissal of the indictment and discharge thereunder.

R.C. 2945.71(C)(2) and (D) provide that a person against whom a felony charge is pending shall be brought to trial within ninety days after arrest where the person has been held in jail in lieu of bail. State v. Walker (1974), 42 Ohio App.2d 41, 327 N.E.2d 796. Trial must be held within the mandatory time limits unless the time for trial is extended by one or more provisions of R.C. 2945.72.

In the appellant's case, more than ninety days elapsed after his arrest and incarceration due to a clerical error. No provision of R.C. 2945.72 applied to extend the time for trial. Clerical error is not among the eight justifications contained in the statute for extending the time for trial. Also, no entry of a continuance was made justifying the trial court's resort to subsection (H) of the statute. See State v. Pudlock (1975), 44 Ohio St.2d 104, 338 N.E.2d 524; Oakwood v. Ferrante (1975), 44 Ohio App.2d 318, 338 N.E.2d 767. Pursuant to R.C. 2945.73(B) an accused shall be discharged if he is not brought to trial within the time period prescribed by R.C. 2945.71 and 2945.72. State v. Gray (1964), 1 Ohio St.2d 21, 203 N.E.2d 319. Such dismissal is a bar to any further criminal proceedings against the accused based upon the same conduct alleged in the original indictment. R.C. 2945.73(D). Under the mandatory provision of Ohio's speedy trial statutes, the appellant was entitled to be discharged as a matter of law. State v. Tope (1978), 53 Ohio St.2d 250, 374 N.E.2d 152.

In the appellant's case, however, the trial court after denying the motion to dismiss allowed the state's request for a Nolle prosequi. This action by the court ended immediate prosecution against the appellant but, as the appellant correctly notes, did not foreclose the possibility of his reindictment for the same criminal activity. See Columbus v. Stires (1967),9 Ohio App.2d 315, 224 N.E.2d 369; State v. Climer (1974), 42 Ohio Misc. 3, 325 N.E.2d 920. The possibility of reindictment is not foreclosed even though subsequent proceedings must ultimately result in the appellant's discharge due to the state's failure to afford him a trial within the statutory time limits. State v. Gray, supra; see also Klopfer v. North Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1.

Because of the nature of the trial court's orders, we must also determine if there is a final appealable order presented in this appeal.

To provide a basis for appeal in a criminal case, there must be a sentence which constitutes judgment or there must be a final order amounting to a disposition of the cause. R.C. 2505.02; See State v. Hunt (1976), 47 Ohio St.2d 170, 351 N.E.2d 106, and cases cited therein.

R.C. 2505.02 provides that "an order affecting a substantial right in an action which in effect determines the action and prevents a judgment * * * is a final order which may be reviewed, affirmed, modified, or reversed, with or without retrial. * * * "

The courts of this state have often addressed the question of whether a particular order is a final appealable one. As a consequence, a considerable body of law has evolved defining final appealable orders. Thus, with respect to nearly all of the orders commonly employed by the trial courts, we have general rules to guide us in determining whether a given order is a final appealable order or is merely interlocutory. The body of case law relative to this issue teaches that it is not the name or the character of the order which determines its appealability it is the Effect of the order upon the action. State v. Holt (1967), 9 Ohio St.2d 147, 224 N.E.2d 525; Schindler v. Standard Oil Co. (1956), 165 Ohio St. 76, 133 N.E.2d 336; Czech Catholic Union v. East End Bldg. & Loan (1942), 140 Ohio St. 465, 45 N.E.2d 300; Systems Construction Inc. v. Worthington Forest (1975), 46 Ohio App.2d 95, 345 N.E.2d 428; State v. Stark (1966), 9 Ohio App.2d 42, 222 N.E.2d 794; House v. Moomaw (1964), 120 Ohio App. 23, 201 N.E.2d 66.

In determining whether a given order is a final appealable order it is not enough to say the order is interlocutory and therefore not appealable. That an order is interlocutory is the conclusion of the analysis, not its starting point. The proper test to apply is whether the order affects a substantial right and in effect determines the action and prevents a judgment. R.C. 2505.02.

Generally speaking, the overruling of a motion to dismiss in a criminal case or a civil case is not...