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City Of Richmond Heights v. Abriani8/24/2000
Judgment: Affirmed
Defendant-appellant Jerry Abriani appeals from his conviction in the Lyndhurst Municipal Court following a jury trial for driving while under the influence of alcohol (DUI) in violation of Richmond Heights Codified Ordinance 333.01(A)(1). Defendant's sole contention on appeal is that he was not brought to trial within ninety days as required by the speedy trial act for a first degree misdemeanor (R.C. 2945.71(B)(2)). We find no error and affirm.
On May 7, 1998 at 2:00 a.m., defendant was found asleep in his car in the middle lane of Highland Road in Richmond Heights. After defendant was asked to perform a series of field sobriety tests, he was arrested and charged with DUI and failure to control. Pretrials were set for May 27, 1998 and June 16, 1998. On the latter date, defendant's trial counsel appeared and filed a handwritten statement as follows:
Jerry A. Abriani hereby enters a not guilty plea to the charges of 333.01A1 DUI of 5/7/98 2:02 a.m. Waiver of time and ALS hearing. Request P.T.
In this document, defendant also requested a trial by jury. On the same date, defense counsel also filed a Notice of Scheduling Conflict informing the court that he will be out of the country from August 1st to August 31st 1998" and requesting trial before or after that date. Neither the Waiver of Time nor the Notice of Scheduling Conflict requested any definite time within which defendant's trial was to be had.
Subsequently,jury trial was set for January 27, 1999, with a final pretrial on January 20, 1999, at which time trial counsel filed a motion to dismiss on speedy trial grounds pursuant to R.C. 2945.71(B)(2). The Court overruled the motion and the jury trial commenced on February 24, 1999. Prior to trial, the court indicated that it denied the motion to dismiss finding on the record that counsel had around the arraignment time submitted a written waiver of time for speedy trial purposes.
On February 25, 1999, the jury found defendant guilty of DUI and not guilty of failure to control. Thereafter, defendant filed his timely notice of appeal.
Defendant's sole assignment of error states as follows:
I. THE TRIAL COURT ERRED WHEN IT DENIED JERRY ABRIANI'S MOTION TO DISMISS FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL, PURSUANT TO O.R.C. 2945.71(B)(2), BECAUSE HIS TRIAL WAS SCHEDULED MORE THAN 9/ MONTHS AFTER HIS ARREST AND THERE WAS NO VALID WAIVER OF SPEEDY TRIAL BY JERRY ABRIANI OR OTHER LEGAL JUSTIFICATION.
Defendant asserts that the trial court erred in denying his motion to dismiss for a violation of his right to a speedy trial pursuant to R.C. 2945.71(B)(2). This section states in pertinent part:
(B) A person against whom a charge of misdemeanor, other than a minor misdemeanor, is pending in a court of record, shall be brought to trial:
(2) Within ninety days after his arrest or the service of summons, if the offense charged is a misdemeanor of the first or second degree, or other misdemeanor for which the maximum penalty is imprisonment for more than sixty days.
Specifically, defendant claims that the June 16, 1998 Waiver of Time written statement was not a waiver for speedy trial purposes, but merely a waiver of his right to have an appeal hearing of his Administrative License Suspension (ALS) within five days of his arrest as is required pursuant to R.C. 4511.191. The State, on the other hand, asserts that defendant was not brought to trial within the above statutory time period because his counsel's June 16, 1998 written statement was a Waiver of Time which waived his speedy trial rights indefinitely.
Consideri
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