State v. Phillips, 83AP-1061

• Decision Date: 26 July 1984
• Docket Number: No. 83AP-1061,83AP-1061
• Citation: 19 OBR 169,19 Ohio App.3d 85,482 N.E.2d 1337
• Parties: , 19 O.B.R. 169 The STATE of Ohio, Appellee, v. PHILLIPS, Appellant. *
• Court: Ohio Court of Appeals

Page 85

19 Ohio App.3d 85

482 N.E.2d 1337, 19 O.B.R. 169

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

No. 83AP-1061.

Court of Appeals of Ohio, Tenth District, Franklin County.

July 26, 1984.

Syllabus by the Court

The date from which the speedy trial provisions of R.C. 2945.71 begin to run for an accused whose original felony charge has been reduced to a misdemeanor is the date the summons was served for the lesser offense.

Gregory S. Lashutka, City Atty., Ronald J. O'Brien, City Pros., and David E. Tingley, Columbus, for appellee.

James Kura, County Public Defender, and John W. Keeling, Columbus, for appellant.

REILLY, Judge.

Defendant, Douglas E. Phillips, appeals his conviction on one count of drug abuse, R.C. 2925.11, a third degree misdemeanor because the drug found on defendant's person was valium. He advances one assignment of error:

"The Trial Court erred by overruling the defendant's motion for discharge due to lack of compliance with the statutory requirements providing for a speedy trial."

Defendant was arrested on July 16, 1983 for disorderly conduct. During a routine search of his person, officials found a substance thought to be methaqualone hidden in his clothing. Therefore, defendant was charged with one count of felony drug abuse, R.C. 2925.11. At some point in time, the exact date being unclear from the record, analysis of the substance revealed that it was not methaqualone, but was, instead, valium. The felony charge was dismissed on July 28, and a misdemeanor drug charge was filed on August 30. On the trial date of October 10, 1983, defendant moved for dismissal on speedy trial grounds. The motion was overruled, and defendant entered a plea of no contest. He was found guilty as charged.

The crux of defendant's appeal is that he should receive credit against the forty-five day period in which he had to be tried according to R.C. 2945.71(B)(1) for the time during which the felony charge was pending. Thus, he argues, he is entitled to credit for sixteen days arising from the felony charge (six days credit, on a three-for-one basis for the time he was held in jail, July 16 to 18, plus ten days from July 18 until the charge was dismissed on July 28). When these sixteen days are computed together with the time the misdemeanor charge was pending (August 31, the date the summons was served, to October 10, the day of trial, or some thirty-nine days), defendant contends that the charge should have been dismissed for violation of defendant's statutory speedy trial right.

The principal case cited by defendant in support of his argument in State v. Bonarrigo (1980), 62 Ohio St.2d 7, 402 N.E.2d 530 . There the Supreme Court held that a defendant is entitled to credit against the two hundred seventy day speedy trial period applicable to a felony charge for the time a previously nolled misdemeanor charge arising from the same conduct was pending. Defendant also relies upon Westlake v. Cougill (1978), 56 Ohio St.2d 230, 383 N.E.2d 599 , and State v. Spratz (1979), 58 Ohio St.2d 61, 388 N.E.2d 751 , wherein the Supreme Court held that the speedy trial clock is tolled, but not reset, during the period between the nolle prosequi of a charge and the subsequent refiling of the same charge, or during the time required for a judicial determination of competency to stand trial.

The state, in opposition to defendant's argument, asserts that the forty-five day period applicable to the misdemeanor charge begins to run upon service of the summons, without regard to the previously dismissed felony charge. It cites State v. Sauers (1977), 52 Ohio App.2d 113, 368 N.E.2d 334 , from the Court of Appeals for Summit County, in support. There the defendant was bound over on a felony charge, but the grand jury returned a misdemeanor indictment. The court of appeals, in reviewing the trial court's denial of a motion to dismiss on speedy trial grounds, held that the grand jury's misdemeanor indictment was a dismissal of the felony charge, and that the running of the misdemeanor time period could not begin until the service of the misdemeanor summons.

It is evident that this precise situation was not addressed by the legislature in the speedy trial statute. However, the construction urged by the state is clearly the...