The opinion
Marianna Brown Bettman, Judge,
dissenting.
I respectfully dissent from the majority’s holding. Had the state been prepared to go forward with the original motion to suppress, the defendant-appellee would, in all likelihood, have been tried within the statutory ninety-day period. The state, however, was not prepared on either January 29,1992, or February 25, 1992, and the first trial court dismissed the original charges because it had earlier warned the state that no further continuances would be granted. The state refiled identical charges on the same day and, pursuant to
Broughton,
the counting of the ninety-day period continued into the second prosecution. The defendant-appellee then filed the
same
motion to suppress he had filed earlier. While the second motion to suppress was a motion made by the defendantappellee, the necessity for making the same motion twice arose as a direct result of the dismissal that the state had prompted by its inability to go forward timely in the first prosecution. In effect, the majority’s holding grants to the state the continuance it was denied by the first trial court and allows the state, by virtue of this
de facto
continuance, to try the defendant-appellee beyond the ninety-day statutory period.
It is well settled that the provisions of R.C. 2945.72 that extend the ninety-day period are to be strictly construed against the state.
State v. Singer
(1977), 50
*475
Ohio St.2d 103, 4 O.O.3d 237 , 362 N.E.2d 1216 . Although conceding to the majority the literal language of the statute, I believe that in this case a literal application defeats the legislative purpose. I would, therefore, affirm the trial court’s dismissal of the charges and overrule the state’s assignment of error.