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Tallmadge v. DeGraft-Biney11/16/1988
WRIGHT, J.
The issue certified herein is whether a jury demand pursuant to Crim. R. 23(A) is timely filed when it is filed not less than ten days before the actual trial (after continuance of the trial date), even though a jury demand had not been filed at least ten days before the originally scheduled trial date. we hold that in such an event the jury demand has been timely filed.
Crim. R. 23(A) provides in pertinent part:
"* * * In petty offense cases, where there is a right of jury trial, the defendant shall be tried by the court unless he demands a jury trial. Such demand must be in writing and filed with the clerk of court not less than ten days prior to the date set for trial, or on or before the third day following receipt of notice of the date set for trial, whichever is later. Failure to demand a jury trial as provided in this subdivision is a complete waiver of the right thereto."
In the construction and application of Crim. R. 23 and the other Rules of Criminal Procedure, this court is guided by Crim. R. 1(B):
"These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed and applied to secure the fair, impartial, speedy, and sure administration of justice, simplicity in procedure, and the elimination of unjustifiable expense and delay." See, also, R.C. 2901.04(B).
The right of trial by jury is so fundamental under our criminal justice system that this fact, in and of itself, should compel the conclusion that ths"date set for trial," as used in Crim. R. 23(A), should mean ten days before the date set for the actual trial without regard to the number of continuances granted by the trial court. Moreover, the policies behind the time constraints placed upon the demand of a jury trial are adequately secured by this interpretation. In our view a ten-day period before the actual trial date allows more than sufficient time to meet the logistical requirements of any municipal court in this state with respect to summoning jurors and having those jurors available for service. See State v. Stauffer (1976), 48 Ohio St.2d 54, 56, 2 O.O. 3d 169, 170, 356 N.E. 2d 724, 725 (P. Brown, J., dissenting).
As the Court of Appeals for Washington County stated in State v. Edwards (1965), 4 Ohio App.2d 261, 266, 31 O.O. 2d 390, 392, 208 N.E. 2d 758, 761:
"Where a request for jury trial is made sufficiently in advance of the actual trial as not to interfere with the orderly administration of the business of the court and will not result in any unnecessary delay or inconvenience to witnesses or prejudice to the state, it may well be an abuse of discretion for the trial court to deny a jury trial."
In the present case and like cases, it is difficult to see how allowing a jury trial would disturb the normal and orderly administration of justice or prejudice the state. Having continued the trial to April 14, 1986, the court received a jury request on March 18, 1986, nearly one month in advance. The court certainly had sufficient time to summon and empanel a jury in this case, and thus we hold it was error to deny appellee's jury request. See State v. Burton (1988), 39 Ohio App.3d 151, 530 N.E. 2d 955.
The time requirement for jury demands found in Crim. R. 23(A) must be interpreted and applied in conjunction with the timing of other aspects of the pretrial process. These include the appointment of counsel, pleadings and motions to withdraw pleadings, and requests for continuances.
In Chardon v. Moyer (1986), 33 Ohio App.3d 154, 514 N.E. 2d 929, the defendant pled "no contest" and subsequently was
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