Summary
In Butcher, the Court found the burden shifted to the state to produce evidence showing the defendant was not entitled to triple time after he showed he was incarcerated.
Summary of this case from State v. DevineOpinion
No. 86-182
Decided November 26, 1986.
Criminal law — Speedy trial — R.C. 2945.71(E) — State fails to document that defendant was not in jail "solely on the pending charge" — Defendant must be discharged, when.
APPEAL from the Court of Appeals for Cuyahoga County.
Appellee, Michael Butcher, was arrested on May 8, 1984 and charged in the Cleveland Municipal Court with having committed the offense of robbery in violation of R.C. 2911.02. He was placed in jail on the day of his arrest, where he remained until May 29, 1984, when he was released on bond. On June 13, 1984, appellee was indicted for the robbery offense, as well as an aggravating specification alleging that he had previously been convicted of armed robbery in 1971.
An arraignment was conducted on June 29, 1984, resulting in an increase in appellee's bail from $5,000 to $20,000. Since appellee was unable to secure a bond for that amount, he was again placed in jail until his case proceeded to trial on January 22, 1985. Four days prior to trial, counsel for appellee filed a motion seeking dismissal of the charges on the basis that appellee was denied his right to a speedy trial within the parameters of R.C. 2945.71 et seq. The trial court conducted an oral hearing on the motion immediately prior to the commencement of the trial, at which time the motion was overruled. A trial to the court ensued, and appellee was found guilty as charged in the indictment. He was then sentenced to a term of thirteen to fifteen years of imprisonment at the Chillicothe Correctional Institute.
R.C. 2945.71 provides, in part:
"(C) A person against whom a charge of felony is pending:
"* * *
"(2) Shall be brought to trial within two hundred seventy days after his arrest.
"* * *
"(E) For purposes of computing time under [division] * * * (C)(2) * * * of this section, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days. * * *"
R.C. 2945.73 provides, in pertinent part:
"(B) Upon motion made at or prior to the commencement of trial, a person charged with an offense shall be discharged if he is not brought to trial within the time required by * * * 2945.71 * * * of the Revised Code."
On appeal, the court of appeals reversed, reasoning that since appellee had presented a prima facie case for discharge when he was not brought to trial by August 27, 1984, a burden of production rested with the state to demonstrate that appellee was not entitled to the triple-count provision prescribed in R.C. 2945.71(E). Because the record was devoid of evidence demonstrating the nonapplicability of the triple-count provision, the court concluded that the charges against appellee should have been dismissed for lack of a speedy trial.
Appellee was arrested May 8, 1984 and placed in jail, where he remained until May 29, 1984, when he was released on bond. This twenty-one day confinement represents sixty-three speedy trial days pursuant to R.C. 2945.71(E). After his arraignment on June 29, 1984, appellee was again incarcerated until his trial commenced in January 1985. Since appellee had been released on bail for the period encompassing May 29, 1984 through June 29, 1984, this interval is measured by single count for speedy trial purposes equalling thirty days (this computation includes the granting of appellee's motion for a one-day continuance). Therefore, as of June 29, 1984, ninety-three speedy trial days had elapsed. Appellee's incarceration on June 29, 1984 again triggered the provisions of R.C. 2945.71(E), leaving fifty-nine days in which to commence the trial. By our calculations, the trial should have commenced no later than August 27, 1984.
The cause is now before this court pursuant to the allowance of the state's motion for leave to appeal.
John T. Corrigan, prosecuting attorney, and John P. Tremsyn, for appellant.
Paul Mancino, Jr., for appellee.
Without citation to any legal authority whatsoever, the state maintains that when a criminal defendant is being held in jail as a result of having been charged with the commission of separate and distinct felonies, the triple-count provision of R.C. 2945.71(E) is not applicable. Presumably, the state seeks to invoke the rule contained in State v. Ladd (1978), 56 Ohio St.2d 197 [10 O.O.3d 363], syllabus, and State v. MacDonald (1976), 48 Ohio St.2d 66 [2 O.O.3d 219], paragraph one of the syllabus, that "R.C. 2945.71(D) is applicable only to those defendants held in jail in lieu of bail solely on the pending charge." Although we continue to adhere to the principles espoused in Ladd and MacDonald, these cases are inapposite to the subject cause.
Subsequent to the decisions in Ladd and MacDonald, R.C. 2945.71 was amended so that the triple-count provision, which formerly appeared in division (D), now appears in division (E).
In his January 18, 1985 motion for discharge, appellee alleged that he was not afforded a speedy trial under R.C. 2945.71(E), and that he remained in jail since the date of his arraignment "solely on this pending cause." At the oral hearing on the motion, the state argued appellee was not being held in jail solely for the charge contained in the indictment, but rather, that he was also being held for "numerous" other charges stemming from a variety of felonies which he allegedly committed. Continuing, the state suggested that, as a result of those other charges, appellee was not entitled to the triple-count provision of R.C. 2945.71(E), thereby allowing the trial to commence within two hundred seventy days of his arrest.
We agree with the court of appeals that the state failed to document its position at the oral hearing by way of records demonstrating the existence of other pending charges sufficient to invoke the rule of Ladd and MacDonald. In fact, a review of the record reveals an absence of any documents establishing that appellee's confinement was related to charges other than the pending charge. When appellee alleged in his motion that he was incarcerated "solely on this pending charge" and then demonstrated he was not brought to trial within the limits imposed by the triple-count provision, he presented a prima facie case for discharge. At that point a burden of production arose whereby the state became obligated to produce evidence demonstrating appellee was not entitled to be brought to trial within the limits of R.C. 2945.71(E). Having failed to produce any such evidence, the court of appeals correctly held that the state did not meet its burden of establishing that appellee was not entitled to the triple-count provision under the statute.
Court records, journal entries or jail records are but some of the means by which the state could have placed evidence in the record to support its position that appellee was not confined in jail solely on the pending charge.
We have repeatedly stated that as valid legislative enactments, R.C. 2945.71 and 2945.73 are mandatory and must be strictly adhered to by the state. State v. Cross (1971), 26 Ohio St.2d 270 [55 O.O.2d 495], paragraph one of the syllabus; State v. Gray (1964), 1 Ohio St.2d 21 [30 O.O.2d 12], paragraph one of the syllabus. In the present case the record unequivocally demonstrates the state's failure to introduce evidence sufficient to rebut appellee's prima facie motion for discharge and, therefore, we are constrained to hold that the conviction was properly reversed on speedy trial grounds.
For the foregoing reasons, the judgment of the court of appeals is hereby affirmed.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.