the speedy-trial statute was tolled following a nolled indictment until the date of reindictment
How later courts described this case
- the speedy-trial statute was tolled following a nolled indictment until the date of reindictment
Written by the judges who cited it.
The opinion
Potter, J.,
dissenting. I would affirm the judgment of the Court of Appeals for the reason expressed in its journal entry and opinion that the state did not have a right to appeal from the lower court’s dismissal of the criminal charges based on the failure to comply with the speedy trial staute. See former R. C. 2945.68 and 2945.70; see, also, *66 State v. Sonnie (1975), 46 Ohio App. 2d 164 , tó the same effect, and cases therein cited.
I would also affirm for the following reasons. As the majority opinion states, the state and defendant agreed-in the trial court that more than 270 days had elapsed from, the date of defendant’s arrest on April 18, 1976. Apparently, in the trial court, the state added the days from December 6, 1976, the date of the re-indictment, to December 21,. 1976, to the prior jail time. Now the state is contending that bv counting only the bail days from December 17th, the date of arraignment, to December 21, 1976, the total time elapsed is 263 days. Nevertheless, the main argument of the state and the sole issue decided by the majority opinion is that the speedy trial time was tolled. The issue that the speedy trial time was tolled by reason of the time elapsing between the tendering of a plea of not guilty by reason of insanity and a finding of mental competency to stand trial resulting from such plea was raised for the first time in the Court of Appeals. The trial court, sua sponte and without objection by the state, referred the defendant for examination and report pursuant to R. C. 2945.37. .1 find that the failure by the state to object, the stipulation as to the expiration of 270 days by the state, and the failure to bring the tolling issue to the attention of the trial court, bring this case within the parameters of the first paragraph of the syllabus in State v. Morris (1975), 42 Ohio St. 2d 307 , as follows:
“An appellate coiirt 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. (Paragraph three of the syllabus, in State v. Childs, 14 Ohio St. 2d. 56, approved and followed.)”
I'find further that the dismissing of an indictment f or the sole purpose of tolling R. C. 2945.71 is an abuse of procedural and substantive-due process. It defeats by subterfuge the legislative purpose expressed in R. C. 2945.71, which sets forth the time limits to bring a defendant to trial.