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State v. Hengstler7/30/1991
THOMAS F. BRYANT, Presiding Judge.
This is an appeal by Gregory Hengstler from the judgment of the Bellefontaine Municipal Court of Logan County entered October 4, 1990, finding Hengstler guilty and sentencing him on his pleas of no contest to charges osdriving under the influence of alcohol in violation of R.C. 4511.19(A)(1) and driving left of center in violation of R.C. 4511.29.
On May 20, 1990, Hengstler was issued a summons upon citations for the traffic violations described above. At arraignment, May 21, 1990, defendant, without counsel, entered his not guilty plea. The court set trial for June 28. On June 6, 1990, Hengstler retained counsel who filed a discovery request and demand for jury trial. The trial court then vacated the trial date previously set, sending to counsel notice of a pretrial conference to be held June 28th. Assignment notices sent to defendant and counsel bear the admonition in capital letters "DEFENDANT MUST APPEAR AT ALL HEARINGS."
Hengstler did not attend the pretrial hearing on June 28 and neither did his counsel of record. An associate appeared in the latter's stead apparently without the authority to negotiate a plea or to assist in settling or narrowing issues in the case.
The trial court, sua sponte, set a second pretrial conference for August 21, 1990. On August 21, 1990, defense counsel moved for dismissal for failure to bring defendant to trial within the time allowed by R.C. 2945.71 et seq. After hearing, August 27, 1990, the trial court denied appellant's motion by entry October 4, 1990, finding that neither defendant nor his trial counsel was present at the pretrial conference held on June 28 and, further, that the time within which the accused must be brought to trial was extended pursuant to R.C. 2945.72(C) and (D) due to defendant's and his counsels neglect.
By entry October 4, 1990, upon appellant's change of plea to no contest at the August 27 hearing, the trial court entered judgment finding appellant guilty of driving under the influence of alcohol and/or drugs in violation of R.C. 4511.19(A)(1) and driving left of center in violation of R.C. 4511.29. The court fined defendant $25 for driving left of center and $400 for driving under the influence, suspended his driver's license for six months, assessed six points against his driver's license and sentenced him to three days in the Logan County Jail.
It is from this judgment that appellant now appeals asserting a single assignment of error which is:
"The trial court erred in overruling the motion to dismiss for want of a speedy trial."
R.C. 2945.71(B)(2) provides that a person against whom a misdemeanor of the first or second degree is charged must be brought to trial within ninety days after his arrest or service of summons. R.C. 2945.72 sets forth circum-
stances in which the time within which an accused must be brought to trial may be extended and states in pertinent part:
"(C) Any period of delay necessitated by the accused's lack of counsel, provided that such delay is not occasioned by any lack of diligence in providing counsel to an indigent accused upon his request as required by law;
"(D) Any period of delay occasioned by the neglect or improper act of the accused[.]"
R.C. 2945.73 provides that if the accused is not brought to trial within the time specified and there has been no extension of time, upon motion made at or prior to the commencement of trial, the accused shall be discharged. See R.C. 2945.73(B).
The total time limit governing this case is ninety days subject
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