State v. Lyons

• Decision Date: 27 September 1978
• Citation: 401 N.E.2d 452,60 Ohio App.2d 228,15 O.O.3d 367
• Parties: , 15 O.O.3d 367 The STATE of Ohio, Appellant, v. LYONS, Appellee. *
• Court: Ohio Court of Appeals

Page 228

60 Ohio App.2d 228

401 N.E.2d 452, 15 O.O.3d 367

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

Court of Appeals of Ohio, Ninth District, Medina County.

Sept. 27, 1978.

Syllabus by the Court

1.Where an indictment is dismissed on defendant's motion for failure to state all of the elements of the crime, the indictment is a nullity, and the elapsed time from arrest to dismissal is not tacked onto a subsequent indictment to aggregate elapsed time for the application of R.C. 2945.73.

2.The state's error in the preparation of an indictment which is later dismissed on the defendant's motion is not error which induces a state-caused delay warranting the dismissal of a subsequent indictment.

Roger R. Ingraham, Pros.Atty., and William L. Thorne, Asst. Pros.Atty., for appellant.

S. F. Sancic, Akron, for appellee.

MAHONEY, Presiding Judge.

This is an appeal by the state, after leave granted, from a judgment of the Common Pleas Court dismissing a complicity to commit murder charge against the defendant, Calvin Lyons, for want of a speedy trial.We reverse.

Facts

Chronologically, the case arises as follows:

November 9, 1977Defendant secretly indicted for complicity to commit aggravated murder.

November 23, 1977Defendant arrested and incarcerated.

Defendant arraigned and pled not guilty.

Parties notified on February 15, 1978, trial date.

February 3, 1978Defendant moved to dismiss indictment for failure to state all the elements of the crime by including the name of the victim in the indictment.

February 13, 1978 Motion heard, granted, defendant held for re-indictment pursuant to Crim.R. 12(I).

February 28, 1978Defendant reindicted for complicity to commit murder.

Trial date set for March 13 and parties notified.

March 9, 1978Defendant moved for dismissal for want of a speedy trial pursuant to R.C. 2945.73.

March 13, 1978 Motion sustained and case is dismissed.

Discussion

The sole issue is whether the time spent in jail on the first indictment may be tacked onto the incarcerated time under the second indictment for the purpose of computing time under R.C. 2945.71-73.

We hold that where an indictment is dismissed on the motion of the defendant for a failure to state all of the elements of the crime, the elapsed time from the arrest to the dismissal may not be tacked onto a subsequent indictment to aggregate elapsed time for the application of R.C. 2945.73.The subsequent indictment is for all purposes a new and original charge and the time begins to run anew.The first indictment was, in effect, a nullity.See, cases cited in annotation, 30 A.L.R.2d 462, 466.

State v. Justice(1976), 49 Ohio App.2d 46, 358 N.E.2d 1382, is distinguishable since that case did not involve a motion by the defendant to dismiss an indictment, but rather was a dismissal for want of prosecution of a misdemeanor complaint.State v. Stephens(1977), 52 Ohio App.2d 361, 370 N.E.2d 759, is likewise distinguishable since the first indictment was dismissed for a want of prosecution after the court had denied the state's request for a continuance.Thus, both Justice and Stephens, supra, involved a delay caused by the state in being unprepared to prosecute on the trial date.

We hold that the state's error in the preparation of an indictment which is later dismissed on a defendant's motion does not warrant a dismissal of the second indictment.

A good argument can be made that the lapse of time caused by the dismissal is actually a delay necessitated by reason of a motion...