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State v. Stamper4/10/1995
pellant's own inaction in waiting twenty-two days to serve the request for discovery. Thus, the trial court did not err in holding that the delay caused by the motion for leave was attributable to appellant.
As was noted above, the evidentiary hearing on appellant's motion to dismiss was held on May 26, 1993. However, it was not until one hundred thirty-nine days later that the trial court rendered its judgment on the motion. Under the second aspect of this assignment, appellant maintains that he was denied his light to a speedy trial on constitutional grounds because the length of the time it took the court to rule on his motion was inherently unreasonable.
As a result of our disposition of the third issue raised in this assignment, we decline to address the merits of appellant's argument, pursuant to App.R. 12(A)(1)(c).
Appellant also asserts that another reason existed for dismissing the charges against him. In its judgment entry denying the first motion to dismiss, the trial court specifically stated that under its analysis, the state still had seven days in which to try appellant. Despite this, after the court had denied the first motion on January 14, 1994, appellant's trial was rescheduled for February 2. Based upon this, appellant submits that he was denied his right to a speedy trial because the trial court failed to journalize an entry continuing the trial before the ninety-day period had run.
As appellant aptly notes, this court has consistently held that the running of the statutory time period can be tolled on the basis of a sua sponte continuance only when the trial court journalized an entry explaining the reasons for the delay. See, e.g., State v. Knittel (Feb. 21, 1992), Ashtabula App. No. 91-A-1599, unreported, 1992 WL 191980. There is some authority indicating that asexplanation of the reasons for the sua sponte continuance is not needed when the reason is obvious from the record. See State v. Terra, (1991), 74 Ohio App.3d 189, 598 N.E.2d 753. However, these cases still indicate that a journal entry must be made before the time will be tolled.
In this case, the record indicates that after the new trial date was set outside the ninety-day limit, the trial court never issued an entry of continuance. Appellant was entitled to a dismissal on this basis. Thus, the trial court erred in denying his second motion to dismiss. Under this analysis, his second assignment of error has merit.
It is highly regrettable that someone such as the appellant should benefit by our observance of what many would consider a technicality. However, the concept of due process as embodied in the constitutional right to a speedy trial is found in both the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution. It was even set forth in R.C. 2945.71 by our legislature as recently as 1981.
The writers of the Constitution and our legislators obviously did not think the concept of a speedy trial was an insignificant technicality, and neither do we on this court. Thus, in such a situation as we now face, our concern must be with the preservation of the integrity of the legal process.
Based upon the foregoing the judgment of the trial court is reversed, and this court enters judgment for appellant.
Judgment reversed.
JOSEPH E. MAHONEY and NADER, JJ., concur.
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