the journal entry granting a continuance must identify the party to whom the continuance is chargeable, or else the delay is charged against the state
How later courts described this case
- the journal entry granting a continuance must identify the party to whom the continuance is chargeable, or else the delay is charged against the state
- requirements for properly journalizing a continuance prior to trial
Written by the judges who cited it.
The opinion
*33
Resnick, J.,
concurring. I concur in the court’s affirmance. I write separately only to underscore the lengthy delays which have taken place throughout this case.
In this appeal, the prosecution argues the applicability of
State
v.
Turner
(1982), 4 Ohio App. 3d 305 . In essence, the state’s position is that speedy-trial issues in cases in which a defendant pursues numerous or lengthy appeals are more appropriately addressed by referring to the flexible constitutional test of
Barker
v.
Wingo
(1972), 407 U.S. 514 , than by rigid adherence to the strict statutory requirements of R.C. 2945.71
et seq.
5
However, in carefully examining the
Turner
case, one finds that it is easily and clearly distinguishable from the present one. The
Turner
case involved a
trial,
a conviction, an appeal from that conviction, a subsequent reversal and remand, and then, later, a dismissal of the case by the trial court.
Here, as is clear to everyone, there was
never
a trial. The prosecution appealed the trial court’s suppression order on October 25, 1979. See R.C. 2945.67. As the majority notes, the state’s appeal was both pretrial and interlocutory in nature. This court reversed the trial court and remanded the case on October 3, 1980. Thus, in a remand context
before
trial,
State
v.
Willis
(1980), 69 Ohio App. 2d 128 [ 23 O.O.3d 332 ], and
not State
v.
Turner, supra,
is the more persuasively reasoned and procedurally applicable case.
On appeal, the prosecution, in attempting to exonerate itself from the mathematical consequences of its own inaction, now vainly urges R.C. 2945.72(E) as a hindsight catch-all provision for tolling the three hundred thirty-six days that have passed. That attempt must fail since it has no merit whatsoever.
Even if we were to discount as chargeable to appellees the time which elapsed between appellee Geraldo’s filing of his motion to suppress on April 23, 1979, and January 12, 1982, the date on which the Ohio Supreme Court remanded this case to the trial court, the remaining three hundred thirty-six days would still exceed the statutory time limit.
6
The passing of these three hundred thirty-six days, in light of all the other time which had passed, is simply inexcusable. Nothing in the record explains or justifies this delay.
I am compelled to conclude that not even a liberal reading of the statutory tolling provisions would save the indictments herein from being immediately dismissed or prevent appellees from being immediately discharged. See R.C. 2945.73(B). Consequently, the trial court did not err in granting appellees’ motions to dismiss the indictments and, having added these brief comments, I concur in the majority’s opinion and judgment.
5
In
Barker
v.
Wingo
(1972), 407 U.S. 514 , the United States Supreme Court set forth a four-factor balancing test for determining when a defendant’s Sixth Amendment speedy trial right has been violated. Simply stated, the factors to be balanced are: (1) the length of the delay; (2) the reasons for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether the length of the delay prejudiced the defendant’s case.
6
Also, even if we were to discount as chargeable to appellees the fifty-two days elapsing between Geraldo’s filing of the cer-tiorari petition on March 12, 1982, and its denial on May 3, 1982, the remaining two hundred eighty-four days running from January 12, 1982 until December 14, 1982 (roughly, nine months) would still exceed the two hundred seventy-day time limit of R.C. 2945.71(C)(2).