The opinion
DeGenaro, Judge,
dissenting.
(¶ 65} I have no dispute with the majority’s statement of the law in this case. The majority accurately and comprehensively describes the law applicable to this case and demonstrates why Ohio’s statutory scheme does not violate due process. My only disagreement with the majority is its application of that law to the facts in this case. The majority concludes that there was competent, credible evidence
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supporting a finding that there was a substantial probability that appellant would be restored to competency within 60 days. At the hearing, the doctor testified that it would probably take more than two months to restore appellant to competency. Clearly, testimony that a defendant will probably not be restored to competency within two months falls short of establishing a substantial probability that the defendant will be restored to competency within 60 days. Rather, it demonstrates the lack of a substantial probability that appellant will be so restored. Thus, I must respectfully dissent from the majority’s opinion.
{¶ 66} In order to explain my disagreement with the majority’s conclusion, I must quote more of Dr. Palumbo’s testimony than is provided in the majority opinion:
{¶ 67} “Q: How long would it take with the appropriate medications and in-hospital, I guess you’d say, to restore [appellant] to competency?
{¶ 68} “A: It’s variable. It could take as little as two months or it could take longer, six months perhaps. I would think in [appellant’s ease, it would take more like two or three months.
{¶ 69} “Q: So you cannot state then that he could be restored with [sic] a two month time frame?
{¶ 70} “A: I could not, no.
{¶ 71} “Q: And in fact, you said two months, three months, six months, with two months being the least amount of time, correct?
{¶ 72} “A: Well, research would bear out those times, but that was based on older research. The medications available now are much better than in the past.
{¶ 73} “Q: Would it be fair to say that in your opinion it would take longer than two months to restore him to competency?
{¶ 74} “A: It might take longer than that. I couldn’t tell you.
{¶ 75} “Q: Is it fair to say it wouldn’t take less than two months?
{¶ 76} “A: This would be accurate probably.”
{¶ 77} Given this testimony, I simply cannot agree with the majority’s conclusion that the trial court was correct when it found that appellant failed to demonstrate that there was not a substantial probability that he would be restored to competence within 60 days. This is not a matter of credibility or relative weight of the evidence. Dr. Palumbo testified that it would probably take more than two months to restore appellant to competency and that two months was the minimum amount of time he expected it would take. There is nothing to believe or disbelieve about his testimony. There is nothing to weigh that testimony against. When viewed in its entirety, it demonstrates that there
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is not a substantial probability that appellant will be restored to competency within 60 days.
{¶ 78} Thus, I would conclude that appellant’s third assignment of error is meritorious.