From Casetext: Smarter Legal Research

Johnstown v. Tullos

Municipal Court, Licking County
May 24, 1993
63 Ohio Misc. 2d 155 (Ohio Misc. 1993)

Opinion

No. 93-TRD-03181.

Decided May 24, 1993.

Mark D. Gardner, for plaintiff.

Jacqueline T. Johnson, for defendant.



This case is before the court on appeal de novo from the Mayor's Court of the village of Johnstown, Ohio, filed pursuant to R.C. 1905.25. The defendant, Angie C. Tullos, was cited on October 23, 1992, by Chief Dotson of the Johnstown Police Department for a violation of Section 331.08 of the Johnstown Codified Ordinances and a violation of Section 335.01 of the Johnstown Codified Ordinances. The reports attached to the case indicate the defendant was accused of making a right turn into a private drive from the left-turn lane and operating her motor vehicle with an expired operator's license. The records of the Bureau of Motor Vehicles indicate that the defendant's license expired August 6, 1992.

Chief Dotson issued a ticket to Tullos requiring her to appear in the Johnstown Mayor's Court on November 12, 1992. This matter was continued from November 12, 1992, at the defendant's request until December 3, 1992, again at the defendant's request until December 28, 1992, and again at the defendant's request until January 21, 1993, at which time the defendant finally appeared with counsel and was found guilty of the violations. The records of the Johnstown Mayor's Court are attached.

No transcript as such was filed in this matter, regardless of the requirements of R.C. 1905.24 requiring the clerk of the mayor's court to make a certified transcript of the proceedings and deliver it with the original papers used in the trial to the court to which the appeal is taken. The records transferred to municipal court (see Appendix for some of these records) consist of two tickets, two Dayton Legal Blank Form Nos. 21035, which are cardboard jackets for each ticket, a Bureau of Motor Vehicles printout dated October 23, 1992, a request for continuance and journal entry continuing the trial to January 21, 1993, a waiver of jury trial undated and signed by the defendant, an acknowledgement of rights form signed by the defendant and undated, a form granting a continuance until December 28, 1992, an entry dated January 21, 1993, ordering a suspension of the defendant's driving privileges, a Bureau of Motor Vehicles printout dated November 12, 1992, indicating a valid driver's license on behalf of the defendant, an entry dated January 21, 1993, ordering a suspension of the defendant's operating privileges, a form signed by the mayor indicating a court date of November 12, 1992, a plea of not guilty and a finding of guilty with a sentence and court costs set out, an identical form further indicating the disposition of the second ticket and a handwritten appeal de novo notice dated April 27, 1993, signed by the defendant's counsel.

At the Johnstown Mayor's Court, the defendant entered a not guilty plea, was tried and found guilty. On January 21, 1993, the defendant perfected her appeal by filing a letter with the Johnstown Mayor's Court requesting an appeal to this court. On April 27, 1993, the mayor's court records were filed in the Licking County Municipal Court, the appropriate forum to which an appeal from the Johnstown Mayor's Court is taken.

R.C. Chapter 1905 governs appeals from mayor's courts. R.C. 1905.23 provides that within ten days from the time a mayor renders judgment, the appellant shall file with the mayor's court a written notice of appeal designating the order or judgment appealed from and the court to which the appeal is taken. All further proceedings in the mayor's court shall be stayed from the time of filing the notice of appeal with the mayor's court. R.C. 1905.24 provides that upon the filing of the notice of appeal, the clerk of the mayor's court shall make a certified transcript of the proceedings and deliver such transcript, together with the original papers used in the trial, to the court to which the appeal is taken, within fifteen days from the rendition of the judgment appealed from. Upon receipt of the transcript and the papers mentioned in this section, the clerk of court to which the appeal is taken shall file them and docket the appeal.

No certified transcript was prepared by the clerk of the Johnstown Mayor's Court. Some of the forms included in the documents transmitted to the court could constitute a transcript under some circumstances, but none of them has been certified.

In the case of Blue Ash v. Herbert (1982), 7 Ohio App.3d 381, 7 OBR 482, 455 N.E.2d 1072, the court held that upon an appeal from the mayor's court, the preparation of the transcript of the proceedings before the mayor's court is mandatory; however, the delivery of the transcript within fifteen days to the court to which the appeal is taken is directory. While the fifteen-day period may be directory, and while appeals from mayor's courts are governed generally by R.C. Chapter 1905, courts of appeals have also held that appeals from mayor's courts to municipal courts are still subject to R.C. 2945.71. This section of the Ohio Revised Code governs the time within which defendants must be brought to trial.

In the current instance, the defendant is charged with an illegal turn under the Johnstown Codified Ordinances, analogous to a minor misdemeanor violation of the Ohio Revised Code. Also, the defendant is charged with driving with an expired operator's license, a violation of Section 335.01 of the Johnstown Codified Ordinances, a first degree misdemeanor analogous to R.C. 4507.02. As a first degree misdemeanor, under R.C. 2945.71, the defendant must be brought to trial within ninety days from the issuance of this citation. In the present case, ninety-six days elapsed between the defendant's filing of the notice of appeal and the filing of the original documents in the office of the Clerk of the Licking County Municipal Court.

The Court of Appeals for Clermont County in Bethel v. Fiscus (Dec. 26, 1989), Nos. C89-05-037 and C89-05-038, unreported, 1989 WL 154733, held that an appeal from a finding of guilty by a mayor's court to a county or municipal court pursuant to R.C. 1905.22 is governed by the speedy trial statute, R.C. 2945.71, and a delay in excess of forty-five days from the date of docketing is prima facie unreasonable.

Similarly, this court finds that a delay of ninety-six days between the filing of the notice and the filing of the original documents is prima facie unreasonable and contrary to the guidelines set out in R.C. 2945.71. Further, the court also finds that the failure to prepare a certified transcript of the proceedings in the Johnstown Mayor's Court is fatal to the appeal.

On the basis of the delay of the filing of the original documents in the Licking County Municipal Court by the Clerk of the Johnstown Mayor's Court and, also and independently, due to the failure of the Clerk of the Johnstown Mayor's Court to prepare a certified transcript of the proceedings, this case is DISMISSED. Costs to the village of Johnstown.

Case dismissed.

APPENDIX

IN THE MAYOR'S COURT, JOHNSTOWN, OHIO

VILLAGE OF JOHNSTOWN, OHIO

Plaintiff -vs- No. __________ __________ Defendant

JURY DEMAND OR JURY WAIVER I. JURY DEMAND

I, __________, hereby make demand for trial by jury, pursuant to Ohio Traffic Rule 9 (B) and Criminal Rule 23. I understand that, by making this demand for jury trial, my case will now be transferred to the Licking County Municipal Court, a Court of record, and that if I am convicted in that Court upon a charge of:

(1) Operating a Motor Vehicle While Under the Influence;

(2) Leaving the Scene of an Accident; or

(3) Driving Under Suspension then my driving privileges may be suspended for a period of time in accordance with law.

Date: __________ Signed: __________ Defendant Date: __________ Signed: __________ Signature of Attorney __________ Address of Attorney

II. WAIVER OF JURY TRIAL

It has been explained to me that I have a right to a jury trial in the Licking County Municipal Court, a Court of record. Knowing this, I now voluntarily acknowledge and state that I hereby waive my right to a trial by jury and consent that the charge against me may be heard and determined in the Mayor's Court of the Village of Johnstown, Ohio.

Date: __________ Signed: __________ Defendant Date: __________ Signed: __________ Signature of Attorney __________ Address of Attorney

YOUR RIGHTS IN MAYOR'S COURT IN THE JOHNSTOWN MAYOR'S COURT Print Your Name__________

INSTRUCTIONS

This form contains a summary of some of your rights and the procedures that will be used in Mayor's Court. Please read each paragraph thoroughly. After you read each paragraph, place your initials in the box at the end of each paragraph. After you have read each paragraph, initialed it, and completed this form, please sign and date this form at the end on the signature line provided.

PROCEDURES

1. The prosecuting attorney or judge will ask you for your completed rights form. If you do not request a continuance to obtain an attorney and if you sign the jury waiver, the trial will proceed against you. ( )

2. The prosecuting attorney or judge will read the complaint to you which sets forth the charge and will explain it to you if you do not understand the nature of the charge. You will be permitted to read the complaint. ( )

3. You will be requested to enter a plea. You may respond by announcing one of the three following pleas:

Not Guilty — By pleading Not Guilty you are denying the charge and the prosecution will be required to prove its case against you beyond a reasonable doubt. ( )

Guilty — The plea of Guilty is a complete admission of your guilt. If you plead Guilty, you will be permitted to give a statement or explanation to the judge before sentence is imposed. ( )

No Contest — The plea of No Contest is not an admission of your guilt, but is an admission of the truth of the facts stated in the Complaint filed against you. Entering this plea constitutes a stipulation that the Court may make a finding of Not Guilty or Guilty from the evident presented by you and the prosecution. ()

4. The prosecution will present its case against you. You have the right to cross-examine witnesses testifying against you. ()

5. You may present your defense. You have the right to have subpoenaes issued by the Court to compel the attendance of witnesses on your behalf. ( )

6. At the conclusion of all the evidence, the judge will reach a decision on the facts and may enter a judgement against you. If you are found guilty, the Court may also at that time enter sentencing. ( )

RIGHTS

1. You have the right to testify or not to testify in your own defense. Under the constitution, you are not required to give testimony against yourself. However, if you do take the witness stand, you will be subject to cross-examination by the prosecuting attorney. ( )

2. You have the right to a trial by jury in all misdemeanor cases except minor misdemeanors (no jail — $100 maximum fine). ()

3. If you do not waive a jury trial, your case will be transferred to the Licking County Municipal Court, a Court of record, and if you are convicted in that Court upon a charge of:

(1) Operating a Motor Vehicle While Under the Influence; or

(2) Leaving the Scene of an Accident; or

(3) Driving Under Suspension; then your driving privileges may be suspended for a period of time in accordance with the law. ()

4. If you desire to be tried in Mayor's Court, you must waive your right to a trial by jury, and you will be asked to sign the waiver of a trial by jury. ( )

5. You have the right to appeal the decision of this Court if you are found guilty. There is an appeal process which must be strictly followed. That process is not set forth in this form. ()

6. If you are in doubt as to whether you are or are not guilty, this Court suggests that you enter a plea of Not Guilty and require the prosecution to prove its case against you. ( )

IN THE MAYOR'S COURT OF JOHNSTOWN, LICKING COUNTY, OHIO

VILLAGE OF JOHNSTOWN, * Plaintiff, * vs. * Case No. ___ __________ * Defendant, * __________

ENTRY

The Defendant, having entered a plea of guilty or having been found guilty, was unable to demonstrate that financial responsibility was in effect at the time of the offense.

IT IS THEREFORE ORDERED that the Ohio Certificate of Registration and the Ohio license plates of the motor vehicle involved be impounded and delivered by the Defendant to the Johnstown Police Department dispatcher not later than ___.

IT IS FURTHER ORDERED that the operator's license of the Defendant shall be suspended for a period of ninety (90) days without any driving privileges.

Dates of Suspension ___ to ___. __________ MAYOR STEVEN WINGO

NOTE: THIS IS A MINIMUM SUSPENSION. YOU MUST CONTACT THE BUREAU OF MOTOR VEHICLES TO CLEAR THE SUSPENSION. OTHERWISE, THE SUSPENSION WILL CONTINUE.

I hereby acknowledge receipt of a copy of this Entry. __________ Defendant's Signature DATE: ___

IN THE MAYOR'S COURT OF JOHNSTOWN, LICKING COUNTY, OHIO

VILLAGE OF JOHNSTOWN, * Plaintiff, * vs. * Case No. __________ __________ * Defendant. * __________

ENTRY

The Defendant, having entered a plea of guilty or having been found guilty, was unable to demonstrate that financial responsibility was in effect at the time of the offense.

IT IS THEREFORE ORDERED that the Ohio Certificate of Registration and the Ohio license plates of the motor vehicle involved be impounded and delivered by the Defendant to the Johnstown Police Department dispatcher not later than __________.

IT IS FURTHER ORDERED that the operator's license of the Defendant shall be suspended for a period of ninety (90) days without any driving privileges.

Dates of Suspension __________ to __________. __________ MAYOR STEVEN WINGO

NOTE: THIS IS A MINIMUM SUSPENSION. YOU MUST CONTACT THE BUREAU OF MOTOR VEHICLES TO CLEAR THE SUSPENSION. OTHERWISE, THE SUSPENSION WILL CONTINUE.

I hereby acknowledge receipt of a copy of this Entry. __________ Defendant's Signature DATE: _____


Summaries of

Johnstown v. Tullos

Municipal Court, Licking County
May 24, 1993
63 Ohio Misc. 2d 155 (Ohio Misc. 1993)
Case details for

Johnstown v. Tullos

Case Details

Full title:VILLAGE OF JOHNSTOWN v. TULLOS

Court:Municipal Court, Licking County

Date published: May 24, 1993

Citations

63 Ohio Misc. 2d 155 (Ohio Misc. 1993)
620 N.E.2d 278

Citing Cases

Village of Amberley v. Mize

The statute is silent regarding the procedure to be followed in this instance. The defendant cites Johnstown…