State v. Lacy

348 N.E.2d 381, 46 Ohio App. 2d 215, 75 Ohio Op. 2d 376, 1975 WL 180483, 1975 Ohio App. LEXIS 5848

• Court: Ohio Court of Appeals
• Decided: May 29, 1975
• Docket: 1169
• Status: Published

Opinions

LyNch, P. J.

Defendant is appealing his conviction of “breaking and entering Ferry Hardware in Martins Ferry, Ohio, in violation of R. C. 2911.13. On October 9, 1974, defendant was arrested for this offense and was incarcerated in jail until the date that his trial commenced, January 9, 1975, which the prosecuting attorney admitted was ninety-two days from the date of defendant’s arrest.

On December 18, 1975, defendant filed a motion under Criminal Rule 18(B) to transfer the trial to another jurisdiction. Section 3 of Rule IX of the Belmont County Court of Common Pleas rules of practice and procedure provides as follows:

“All motions and demurrers shall be submitted to the Court on the second Monday next after the filing of the same, unless for good cause shown, the hearing is continued.”

Pursuant to this rule, this motion was heard on January 6, 1975, and was overruled. On January 8, 1975, defendant filed a motion that he be discharged because he had not been brought to trial within the time required by R. C. 2945.71 and 2945.72. This motion was heard by the trial court on January 9, 1975, prior to the'start of the trial, and was overruled on the basis that defendant had extended the time within which he was required to be tried by filing his motion for a change of venue, on December 18, 1974.

Defendant’s only assignment of error,is that the trial court erred in denying his motion to discharge him on the grounds that he had not been brought to trial within the time required by R. C. 2945.71. The syllabus of State v. Walker, 42 Ohio App. 2d 41, which was decided by this court, reads as follows:

“1. R. C. 2945.71(C)(2) and (D) provide that a person against whom a felony charge is pending shall be brought to trial within ninety days after his arrest, where such person has been held in jail in lieu of bail on the pending charge, unless such time is extended by R. C. 2945.72.

“2. R. C. 2945.72(E) provides that a motion filed by accused may extend the time within which such accused must be brought to trial. ’ ’

We agree with the trial court that the filing of the December 18th motion by defendant for a change of venue extended the time within which defendant should be brought to trial pursuant to R.. C. 2945.72(E). Defendant -could not be tried in Belmont County until such motion was heard and decided.

Judge O’Neill dissents on the basis that this case was set for trial on January 9, 1975, by a journalized assignment dated December 12, 1974, and that defendant’s December 18, 1974, motion for a change of venue did not delay the trial of this case. Statements by the prosecution tend to support Judge O’Neill’s conclusion.

However, the trial judge’s right to change defendant’s trial date in order to comply with R. C. 2945.71 was suspended from December 18, 1974, to- January 6, 1975, by defendant’s motion for a change of venue. Moreover, on January 6, 1975, the defendant stated that he needed two witnesses for a proper defense, and the trial judge gave defendant an opportunity to contact such witnesses.

Plaintiff cites Sup. E. 8(B), as follows:

“All criminal cases shall be tried within six months of the date of arraignment on an indictment or information. ’’

The authority of the Ohio Supreme Court to superintend all courts of this state is set out in Section 5(A) (1), Artide IY, of the Ohio Constitution. The authority of the Ohio Supreme Court to prescribe rules governing practice and procedure in all courts of this state is set out in Section 5(B), Article IY, of the Ohio Constitution, which provides that such rules must be submitted to the General Assembly for approval. If so approved, all laws in conflict with such rules shall have no further force or effect.

There is no provision that Eules of Superintendence have to be submitted to the General Assembly for approval. We hold that paragraph (A) (1) of Section 5, Article IV, of the Ohio Constitution, is independent of paragraph (B) of such section, and that the Ohio Supreme Court Eules of Superintendence do not invalidate any existing statute. If Sup. E. 8(B) came under the provisions of paragraph (B) of Section 5, Article IY, of the Ohio Constitution, we would hold that E. C. 2945.71 is substantive rather than procedural and would still be valid. We overrule defendant’s assignment of error.

Judgment affirmed.

DoNourio, J., concurs. O’Neill, J., dissents.