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City of Cleveland Heights v. Wood11/22/1995
JUDGMENT Affirmed
Defendant-appellant John Wood, an attorney representing himself, appeals from his conviction for speeding following a jury trial in the Cleveland Heights Municipal Court. Defendant claims the court erred in not dismissing the charges for failure to observe the speedy trial statute. Defendant also contends that the traffic ordinance under which he was charged was unconstitutional. We find no merit to these contentions and affirm.
On December 9, 1993, the defendant was cited under Cod. Ord. 333.03 for speeding and operating a motor vehicle at 41 mph. in a 25 mph. zone in Cleveland Heights.
On January 4, 1994, the defendant filed a request for a jury trial. In response, the City filed a motion to amend the speeding offense to a violation of R.C. 4511.21(A). Because State law classifies speeding as a minor misdemeanor with no right to a jury trial, a bench trial was scheduled for January 13, 1994. Defendant objected to the City's motion to amend citing lack of service and the court granted his motion.
The defendant made an oral motion to dismiss the case on the grounds that he was denied a speedy trial and filed a brief in support on January 18, 1994. The City filed objections and a brief in opposition. The record and the docket contain no reference to a ruling on the speedy trial motion. However, the case went to jury trial on the Cod. Ord. 333.03 charge on January 21, 1994. In the absence of a transcript of the proceedings, we, therefore, must assume that the motion to dismiss was denied on January 21, 1994. The jury returned a guilty verdict and this appeal ensued.
Defendant's sole assignment of error states as follows:
I. AT TRIAL, APPELLANT MOVED FOR DISMISSAL FOR FAILURE TO PROVIDE A TRIAL WITHIN THIRTY DAYS OF THE SERVICE OF THE SUMMONS. THIS MOTION WAS DENIED. APPELLANT URGES THAT THIS WAS ERROR.
Defendant asserts that the trial court erred in denying his motion to dismiss. Defendant argues that he was not brought to trial within 30 days of his citation. Defendant's argument is without merit. Defendant was charged under Cod. Ord. 333.03, a fourth degree misdemeanor, and as such, the City had 45 days to bring defendant to trial. The record before this Court shows that defendant's trial was commenced within 45 days from his citation.
Nevertheless, defendant contends that Cod. Ord. 333.03, which is in the identical language of R.C. 4511.21(A) is unconstitutional because it enhances the statutory penalty from a minor misdemeanor to a misdemeanor of the fourth degree. For a minor misdemeanor, state law prescribes that the defendant be brought to trial within thirty days of the arrest or summons; for a fourth degree misdemeanor, within forty-five days. (R.C. 2945.71(A)(B)). Defendant maintains that R.C. 4511.21(A) is a general law within the meaning of the Ohio Constitution, Art. II, Sec. 26 ("All laws, of a general nature, shall have a uniform operation throughout the state") and cannot be modified by municipal law. However, Art. XVIII, Sec. 3 of the Ohio Constitution gives municipalities "authority to exercise all powers of local self government and to adopt and enforce [laws] * as are not in conflict with general laws." We do not find that Cod. Ord. 333.03 is unconstitutional as defendant contends, but is within the "home rule" powers vested in Cleveland Heights.
Defendant's argument is without merit. A municipal ordinance that increases the penalty for a crime, but does not change the classification of the offense from a misdemeanor to a felony, is not in conflict with a state statute on the same subject within the meaning of Section 3, Art. XVIII. Niles v. Howard (
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