Village of Oakwood v. Ferrante

• Decision Date: 19 June 1975
• Citation: 338 N.E.2d 767,44 Ohio App.2d 318
• Parties: , 73 O.O.2d 374 VILLAGE OF OAKWOOD, Appellee, v. FERRANTE, Appellant.
• Court: Ohio Court of Appeals

Page 318

44 Ohio App.2d 318

338 N.E.2d 767, 73 O.O.2d 374

VILLAGE OF OAKWOOD, Appellee, v. FERRANTE, Appellant.

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

June 19, 1975.

Syllabus by the Court

The granting of a sua sponte continuance may not be implied from the fact that the trial court originally set an accused's trial for a date beyond that permitted by R.C. 2945.71. Where the court's journal does not reflect that a continuance has been granted on or before the last day for trial permitted by R.C. 2945.71, the state may not rely upon R.C. 2945.72(H) to justify a delay in bringing the accused to trial.

Joseph W. Diemert, Jr., Cleveland, for appellee.

David R. Barnhizer, Cleveland, for appellant.

JACKSON, Judge.

Defendant, Steven Ferrante, was arrested on June 21, 1974, and cited for operating a motor vehicle while under the influence of alcohol, in violation of Section 333.01(a) of the Codified Ordinances of the Village of Oakwood. On June 25, 1974, defendant appeared in Oakwood Mayor's Court and entered a plea of not guilty. The case was then bound over to Bedford Municipal Court where it was set for trial on October 8, 1974, 109 days after the date of his arrest. On October 8, 1974, the case was continued to permit defendant fendant Ferrante to secure defense counsel. He did not request a continuance or otherwise delay his trial prior to October 8, 1974.

On October 22, 1974, defendant filed a motion to dismiss based upon the state's failure to bring him to trial within the time limits specified in R.C. 2945.71 This motion was heard on October 29, 1974, in Bedford Municipal Court. The trial court denied the motion to dismiss, whereupon, defendant entered a plea of no contest and was fined $350 and costs.

Defendant now appeals his conviction, assigning as error the failure of the trial court to grant his motion to dismiss. We find merit in this assignment of error for the reasons outlined in the following discourse. The offense charged against the defendant, driving while under the influence, carries a possible jail sentence of up to six months. Oakwood Codified Ordinance 333.99 (R.C. 4511.99(C)). R.C. 2945.71(B)(2) provides that:

'(B) A person against whom a charge of misdemeanor, other than a minor misdemeanor, is pending in a court of record, shall be brought to trial: * * *

'(2) Within ninety days after his arrest or the service of summons, if the offense charged is a misdemeanor of the first or second degree, or other misdemeanor for which the maximum penalty is imprisonment for more than sixty days.'

Therefore, the defendant should have been brought to trial within ninety days of June 21, 1974, the day of his arrest, unless one of the extensions permitted under R.C. 2945.72 is applicable. Appellee admits that the defendant was not brought to trial within ninety days of his arrest, but argues that the nienty-day period was properly extended because of a change in venue and because the court granted a reasonable continuance.

R.C. 2945.72 provides, so far as is pertinent:

§ 2945.72 Extension of time for hearing or trial.

'The time within which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may be extended only by the following: * * *

'(F) Any period of delay necessitated by a removal or change of venue pursuant to law * * *

'(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.'

A careful review of the record fails to disclose either a change of venue or a continuance that would justify the extension of defendant's time for trial. Defendant first appeared in the Mayor's Court in the Village of Oakwood and entered a plea of not guilty on June 25, 1974. Because defendant did not waive his right to trial by jury, the Oakwood Maryor's Court was without jurisdiction to proceed and, as required by R.C. 2937.08, certified the case to Bedford Municipal Court. Appellee argues that this transfer of the case from Oakwood Mayor's Court to Bedford Municipal Court constituted a change of venue so as to permit a postponement of defendant's trial pursuant to R.C. 2945.72(F). This argument apparently stems from a confusion of the concepts of 'jurisdiction' and 'venue.'

' Jurisdiction' is the power of a court to hear and determine a case on its merits, whereas 'venue' denotes the place where the cause should be heard. Morrison v. Steiner (1972), 32 Ohio St.2d 86, 290 N.E.2d 841. The certification of the record from Oakwood Mayor's Court to Bedford Municipal Court was not a change of venue, but a transfer required by statute because the Mayor's Court lost jurisdiction over the matter when defendant entered his plea of not guilty.

Also the transfer of the case from Oakwood Mayor's Court to Bedford Municipal Court occurred just four days after defedant was arrested. This transfer, therefore, cannot justify the fact that defendant's trial was originally scheduled for a date nineteen days beyond the ninety-day limit.

We similarly reject appellee's contention that the date for defendant's trial was permissibly extended pursuant to R.C. 2945.72(H) for the period of a 'reasonable continuance granted other than upon the accused's own motion.' As noted above, defendant was arrested on June 21, 1974, so that he should have been brought to trial on or before September 19, 1974, the ninetieth day after his arrest. Unless the record shows that a reasonable continuance was granted on or before September 19, 1974, the trial court was obligated to grant a motion to dismiss made by the defendant after September 19, 1974, and prior to trial. R.C. 2945.73.

The record contains no indication that a continuance was granted prior to October 8, 1974. However, appellee argues that, by originally setting defendant's case for trial on a date beyond the ninety-day limit, the Bedford Municipal Court impliedly granted a sua sponte continuance. In support of this argument, the appellee cites the record of the October 29, 1974 hearing on defendant's motion to dimiss. At this hearing the trial court stated that a continuance to October 8, 1974, was reasonable in light of the court's over-crowded docket.

Defendant argues that the trial court has no authority to grant a sua sponte continuance because of crowded docket conditions. In support of this argument, defendant cites Leonard v. McIntosh (Fla.1970), 237 So.2d 809. The speedy trial statute of the State of Florida may be tolled if, for 'good and sufficient reasons' a trial cannot be provided. The court, in Leonard v. McIntosh, held that a crowded docket was not a good and sufficient reason to toll the statute. A California appellate level court has held that the congested condition of the court's docket does constitute 'good cause' within the meaning of a statute providing for the dismissal of a misdemeanor for failure to bring a defendant to trial within the specified time unless good cause to the contrary is shown. People v. Yniquez (1974), 42 Cal.App.3d Supp.13, 116 Cal.Rptr. 626. Courts within the federal system have also held that a defendant is not entitled to a dismissal for a delay in trial caused by the court's congested calendar. United States v. Rodriguez (5th Cir.1974), 497 F.2d 172; United States v. Atkins (2d Cir.1974), 503 F.2d 500; United States v. LaBorde (6th Cir.1974), 496 F.2d 965.

R.C. 2945.72(H) is extremely broad in scope, permitting an extension of the time within which an accused must be brought to trial for: '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.' (Emphasis supplied.) A short, sua sponte continuance granted because of the court's crowded docket would appear to be a reasonable continuance permitted under the broad scope of R.C. 2945.72(H).

We have no doubt that the Bedford Municipal Court, like many other courts in this state, has serious docket problems created by a heavy case load. However, to find that the trial court impliedly granted a continuance whenever the record shows that the trial court originally set defendant's trial for a date beyond that permitted by R.C. 2945.71 would violate both the letter and the spirit of the speedy trial statutes.

R.C. 2945.73 requires that a person charged with an offense shall be discharged, if he is not brought to trial within the time required by R.C. 2945.71 and 2945.72. R.C. 2945.72 permits the extension of the time within which an accused must be brought to trial,...