State v. Davis9/12/2003
gnments of error.
II.
. The first of assignment of error is based on the claim that Davis' speedy trial rights were violated when the trial court refused to dismiss Count VIII of the indictment. Davis was arrested on September 17, 2001, and was originally indicted on September 24, 2001, on two counts of murder with firearm specifications (Counts I and II), one count of involuntary manslaughter in violation of R.C.2903.04(B) with a firearm specification (Count III), one count of tampering with evidence (Count IV), one count of having a weapon while under disability (Count V), one count of receiving stolen property (Count VI), and one count of trafficking in cocaine (Count VII).
. On September 28, 2001, Davis pled not guilty and a $500,000 cash surety bond was set. However, Davis remained in jail during the entire proceedings. Subsequently, on November 13, 2001, Davis's original counsel filed a motion to withdraw, and new counsel entered an appearance on November 19, 2001. The original trial date was continued on November 26, 2001, at Davis's request. Davis also filed a motion to suppress evidence on December 4, 2001. Shortly thereafter, on December 10, 2001, Davis filed a waiver of his right to a speedy trial.
. On February 25, 2002, a second indictment was filed, charging Davis with involuntary manslaughter as a proximate result of attempting to commit a felony in violation of R.C. 2903.04. This charge also included a firearm specification. On February 28, 2002, Davis filed a motion to dismiss the second indictment on speedy trial grounds, but the trial court denied the motion. The court then consolidated the two cases and designated the additional involuntary manslaughter charge as Count VIII. By our calculation, 158 days elapsed between the arrest date and the second indictment. However, only 84 days elapsed between the arrest and the waiver of speedy trial rights on the original indictment. Therefore, the issue is whether the original waiver applies to the second indictment.
. According to Davis, the trial court erred in denying his motion to dismiss Count VIII, because it was based on the same facts as the original indictment. The State contends, however, that the speedy trial waiver also applied to the second indictment, because Count VIII was a lesser-included offense to charges in the original indictment.
. The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution. Under R.C. 2945.71(C)(2), defendants charged with felonies must be brought to trial within 270 days, or within 90 days if they are jailed while awaiting trial. These provisions are strictly construed against the State. State v. Singer (1977), 50 Ohio St.2d 103, 108-09. Defendants may waive their right to a speedy trial. State v. King (1994), 70 Ohio St.3d 158, 160. However, waivers must be made knowingly, voluntarily, and intelligently. State v. Adams (1989), 43 Ohio St.3d 67, 69.
. In Adams, the Ohio Supreme Court considered whether a defendant's waiver of speedy trial rights for an initial charge of driving while having a prohibited concentration of alcohol applied to a subsequently-filed charge of operating a vehicle while under the influence of alcohol. Both charges stemmed from the same set of facts, but involved different subsections of R.C. 4511.19(A). Ultimately, the Ohio Supreme Court decided that the initial waiver did not apply to the additional charge. In particular, the court stressed that: " naware that his original waivers could affect the course of a subsequent charge, * * * [defendant] did not have sufficient knowledge of the consequences of his a
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