State v. Stephens

• Decision Date: 02 June 1977
• Citation: 52 Ohio App.2d 361,6 O.O.3d 404,370 N.E.2d 759
• Parties: , 6 O.O.3d 404 The STATE of Ohio, Appellant, v. STEPHENS, Appellee. *
• Court: Ohio Court of Appeals

Page 361

52 Ohio App.2d 361

370 N.E.2d 759, 6 O.O.3d 404

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

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

June 2, 1977.

Syllabus by the Court

1. In a criminal proceeding, a dismissal for want of prosecution is not a bar to reindictment unless one of the following occurs: the dismissal is constitutionally compelled; the dismissal is statutorily compelled and the statute requires a dismissal under that statute to be with prejudice; or the entry of dismissal specifically provides that the dismissal is with prejudice.

2. Where a nolle prosequi has been entered on an indictment or where a dismissal premised on the fault of the prosecution has been entered on an indictment and the defendant is subsequently reindicted, the proper method of computing time pursuant to provisions of R.C. 2945.71 is to include the time incarcerated pending trial under the original indictment in addition to the time spent pending trial under the reindictment. Where the defendant is released without bail upon dismissal of the original indictment, the dismissal is not entitled to have time between the dismissal and the reindictment included pursuant to R.C. 2945.71, because during such period no charge is pending. However, if upon dismissal, the defendant is held in jail or on bail pursuant to Crim.R. 12(I), such time in jail or on bail will be included in the computation of time under R.C. 2945.71.

John T. Corrigan and George J. Sadd, Cleveland, for appellant.

Steuer, Escovar & Berk Co., L. P. A., Cleveland, for appellee.

JACKSON, Judge.

Defendant Lyra Stephens, the appellee, was arrested and incarcerated on September 6, 1974. On October 1, 1974, the defendant was indicted for carrying a concealed weapon and for possession of a weapon while under a disability. A continuance was granted to the defendant on November 12, 1974. The case came on for hearing on December 9, 1974. At that hearing the prosecution requested a continuance; the request was denied by the trial court and the case dismissed for want of prosecution.

The defendant was reindicted on February 6, 1975; a capias was issued on February 19, 1975, and returned on June 16, 1975. On July 14, 1975, the defendant filed a motion to dismiss for lack of a speedy trial. This motion was assigned to a judge of the Court of Common Pleas, who, on July 22, 1975, granted the motion to dismiss. The judgment entry of dismissal, however, does not disclose the grounds upon which the dismissal was based.

The state, the appellant herein, filed a timely notice of appeal and assigns three errors, to-wit:

"Assignment of Error No. 1: It was a flagrant abuse of discretion and a clear disregard of the law for the trial court to grant the defendant's motion to dismiss for the lack of a speedy trial when only thirty-nine days had elapsed between the time defendant was arrested and the time the motion to dismiss was granted.

"Assignment of Error No. 2: The trial court erred in failing to state findings of fact and reasons for its dismissal, although so required to under Criminal Rule 48(B).

"Assignment of Error No. 3: The trial court abused its discretion by dismissing a case against a convicted drug dealer when it did not have a complete record of the prior proceedings."

On November 4, 1976, this court reversed and remanded the decision of the trial court. Subsequently, on February 8, 1977, however, this court sua sponte amended its entry of November 4, 1976, to provide that "upon receipt of the findings of fact and conclusions of law by the trial court, in accordance with the mandate of this entry, this court will proceed to a determination on the merits." See Crim.R. 48(B); State v. Bound (1975), 43 Ohio App.2d 44, 332 N.E.2d 366.

In compliance with the mandate of this court, the trial court has filed its findings of fact and conclusions of law, and the appeal is now before this court for a disposition on the merits.

The third error assigned by appellant will be considered first. In this assignment it is the contention of appellant that the trial court committed prejudicial error in dismissing the indictment against the appellee because the trial court did not have a complete record of the prior proceedings. The appellant does not contend that the state was prejudiced by the trial court apparently not having a complete record of the prior proceedings, and neither does appellant challenge in his original brief or his supplemental brief filed after the trial court's submission of findings of fact and conclusions of law any specific findings on which the court relied.

The docket sheet containing the journal entries of the proceedings under the October 1, 1974, indictment is not included in the record on appeal. Except for the journal entry of dismissal dated December 9, 1974, being read into the record, the transcript does not reveal any reference to journal entries under the October 1, 1974, indictment. ¹ The findings of the trial court do not appear to have been based on the journal entries of the prior indictment, but rather on the comments made by the prosecutor and the defense counsel, and the testimony of former counsel. Neither is there any reason advanced as to why the journal entries under the prior indictment were ignored.

Appellant, however, did not request that the journal entries under the prior indictment be considered by the court and did not object to their absence. The Supreme Court of Ohio has held that:

"Generally, an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court." State v. Lancaster (1971), 25 Ohio St.2d 83, 267 N.E.2d 291 (Paragraph one of the Syllabus).

Because appellant did not object to the absence of the docket and journal entries in a timely manner and does not allege any prejudice or any specific error in the findings of the court ² (Crim.R. 52(A)), this court will not consider the question of whether the trial court erred in its apparent failure to rely on the docket and journal entries for the facts of the prior indictment. Therefore, the third assignment of error is not well taken.

In the first error assigned the appellant alleges error by the trial court in granting defendant's motion to dismiss for lack of speedy trial under R.C. 2945.71/2945.73.

The trial court granted defendant's motion to dismiss for the following three reasons:

"1. He was confined in jail for this offense for a period in excess of 90 days, contrary to the provisions of Revised Code Sections 2945.71 and 2945.72.

"2. The failure to bring the defendant to trial prior to July 22, 1975 was so prejudicial to the right of the defendant to be afforded a speedy trial that it was violative of his U. S. and Ohio Constitutional rights thereto.

"3. The defendant with respect to this offense had been discharged by Judge White."

This assignment of error challenges only the first reason advanced by the trial court for dismissal. The supplemental brief by appellant additionally argues that the dismissal for want of prosecution by the first judge was without prejudice; i. e., the dismissal did not bar reindictment. Appellant does not argue in either brief that the trial court erred with respect to its conclusion that the defendant was denied his right to a speedy trial under Amendments Six and Fourteen, United States Constitution. Klopfer v. North Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1.

Unless this court were to find plain error under Crim.R. 52(B) in the conclusion of the trial court that defendant was denied his constitutional right to a speedy trial, this court is required to affirm the decision by the trial court. Affirmance would be required because any error in the trial court's dismissal on the other two grounds would be harmless. Crim.R. 52(A).

The United States Supreme Court in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, identified some of the factors which courts should consider in determining whether a defendant has been deprived of his constitutional right to a speedy trial. The following four factors were identified: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id., at 530, 92 S.Ct. at 2192. In assessing these four factors, the court stated: "We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial." Id., at 533, 92 S.Ct. at 2193.

We construe the above language to mean that evidence suggestive of a deprivation is not required for each of the four elements, but that evidence supportive of a deprivation is required for at least more than one of the four elements. Accord, State v. Davis (1976), 46 Ohio St.2d 444, 349 N.E.2d 315.

In the case at bar the evidence appears to establish that the length of delay from the first arrest to the date of dismissal from which this appeal arises was approximately ten and one-half months. The reason for the delay after December 9, 1974 (at which time appellee was ready to proceed), was the dismissal of charges under the first indictment for want of prosecution, and approximately four months delay for return of the capias issued under the reindictment. The delay from the November 12, 1974, trial date to the December 9, 1974, trial date under the first indictment appears to have resulted from the motion by appellee for a continuance. Appellee did not assert his right to speedy trial prior to his filing a motion to dismiss on July 14, 1975, the capias having been returned June 16, 1975. Appellee claims that he was prejudiced by the delay resulting from the December 9, 1974, dismissal because witnesses available on December 9, 1974, would not be available...