State v. Curry9/22/1999
CHARACTER OF PROCEEDING: Criminal Appeal from the Licking County Municipal Court, Case No. 98TRC10240
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 22, 1999
Appellant Angel F. Curry appeals the judgment of the Licking County Municipal Court finding her guilty of driving while intoxicated (R.C. 4511.19) and speeding (R.C. 4511.21). On August 23, 1998, a trooper for the Ohio State Highway Patrol observed appellant, who was driving a 1997 Ford, drifting off the right-hand side of State Route 79 in Heath. The trooper further noticed appellant change lanes without signaling and nearly strike one of two vehicles she passed on the left. After clocking her speed at 61 m.p.h. in a 35 m.p.h. zone, the trooper effectuated a traffic stop. Appellant submitted to a breathalyzer test, which showed a concentration of 0.170 grams of alcohol per 210 liters of breath. Appellant initially pled not guilty. On August 24, 1998, appellant filed a demand for discovery and bill of particulars. The trial court, on September 25, 1998, set a trial date of November 2, 1998. On October 23, 1998, the State attempted a discovery response. The sequence of events is somewhat confusing, but the trial court file contains a faxed document captioned "RESPONSE TO DEFENDANT'S REQUEST FOR DISCOVERY, NOTICE OF EVIDENCE AND/OR BILL OF PARTICULARS" file-stamped on October 23, 1998. The faxed "signature" to this document reads "Harvey H. Shapiro by G. Green." The certificate of service, similarly "signed," states that a copy was placed in appellant's attorney's folder in the Licking County Municipal Court Clerk's Office. Appellant then filed a three-branch motion, dated October 28, 1998, requesting dismissal for the state's failure to comply with discovery, or, in the alternative, an order to compel discovery, as well as a request for an enlargement of time to file pre-trial motions. The trial court issued a judgment entry on November 3, 1998 granting a continuance of the trial without specifying a date. Moreover, the court cast doubt on the veracity of the October 23, 1998 certificate of service, and struck from the record the state's discovery response on the grounds that signatory Gary Green was not authorized to practice law. On November 4, 1998, the state again filed a discovery response, this time with Attorney Shapiro's original signature. On December 2, 1998, the trial court set a new trial date of February 8, 1999. However, on January 28, 1999, via written motion, the state moved to continue. The court found that the request was reasonable under R.C. 2945.72(H) and granted said continuance, setting a new date of April 19, 1999. One week before trial, on April 12, 1999, appellant filed a motion to dismiss on speedy trial grounds, which the court overruled. On the date of trial, appellant changed her pleas to "no contest." Upon the trial court's finding of guilty on both charges, she timely appealed and herein raises the following sole Assignment of Error:
THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY DENYING APPELLANT'S SPEEDY TRIAL MOTION. I
R.C. 2945.73 mandates that if an accused is not brought to trial within the time requirements of R.C. 2945.71 and 2945.72, the accused shall be discharged. The prosecution must strictly comply with R.C. 2945.71 and 2945.73. State v. Reeser (1980), 63 Ohio St.2d 189; State v. Rockwell (1992), 80 Ohio App.3d 157, 165. A defendant facing a first-degree misdemeanor is entitled to a trial within ninety days of his or her arrest or the service of summons. R.C. 2945.71(B)(2). Although authority exists for holding that a defendant's filing of a request for discovery tolls the speedy trial time under R.C. 2945.72(E) until the state files
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