State v. Montgomery

399 N.E.2d 552, 61 Ohio St. 2d 78, 15 Ohio Op. 3d 119, 1980 Ohio LEXIS 615

• Court: Ohio Supreme Court
• Decided: January 23, 1980
• Docket: No. 79-251
• Status: Published

Opinions

Per Curiam.

The issue in the instant cause is whether it was permissible for the trial court, on the authority of R. C. 2945.72(H), to sua sponte continue appellee’s trial date beyond the statutory period prescribed in R. C. 2945.71(C)(2).

The General Assembly has enacted R. C. 2945.71 through 2945.73 in a legislative attempt to quantify a defendant’s right to a speedy trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Klopfer v. North Carolina (1967), 386 U. S. 213; Barker v. Wingo (1972), 407 U. S. 514; Section 10 of Article I of the Constitution of Ohio; State v. MacDonald (1976), 48 Ohio St. , 357 N.E. 2d 40. Although some doubt has been expressed by members of this court regarding the feasibility of such an enactment, State v. Ladd (1978), 56 Ohio St. 2d 197, 201, 383 N.E. 2d 579; State v. Pugh (1978), 53 Ohio St. 2d 153, 372 N.E. 2d 1351, these statutory provisions remain mandatory and must be complied with by the state. State v. Pudlock (1975), 44 Ohio St. 2d 104, 105, 338 N.E. 2d 524; State v. Martin (1978), 56 Ohio St. 2d 289, 297, 384 N.E. 2d 239.

R. C. 2945.71, in part, provides:

“(C) A person against whom a charge of felony is pending:

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“(2) Shall be brought to trial within two hundred seventy days after his arrest.”

R. C. 2945.72 states, in essence, that the time within which an accused must be brought to trial may be extended only by the following:

“(H) The period of any continuance granted on the accused’s own motion, and the period of any reasonable continuance granted other than upon the accused’s own motion.”²

We are in agreement with the Court of Appeals which found the holding in State v. Pudlock, supra, dispositive of the instant controversy. In Pudlock, the trial court failed to set the defendant’s cause therein for resolution within the statutory time period prescribed by R. C. 2945.71. Instead, the court ruled sua sponte, after the statutory period had elapsed, that the existence of a crowded docket warranted a continuance of the cause pursuant to R. C. 2945.72(H). In finding such an after-the-fact extension unacceptable, this court stated that to permit such continuances would emasculate the provisions of R. C. 2945.71 and thwart the intended legislative purposes of the speedy trial statutes.

In a cause arising under circumstances similar to Pudlock, this court in State v. Lee (1976), 48 Ohio St. 2d 208, 357 N.E. 2d 1095, upheld a sua sponte continuance by a trial court predicated upon R. C. 2945.72(H), where the court, due to a crowded docket and a judges’ conference, continued the defendant’s cause “by entry made prior to the expiration of the time limit derived from R. C. 2945.71.” This court concluded, at page 210, that a two-day extension of a defendant’s cause under the aforementioned circumstances was reasonable in light of “the failure of the defendant to object and to assert persuasively his basis for a contrary conclusion.”

Both Pudlock and Lee provide that a trial court which chooses to exercise its discretion under R. C. 2945.72(H) to sua sponte continue a defendant’s cause should do so prior to the expiration of the statutory period prescribed by R. C. 2945.71. In the instant cause, it is uncontroverted that the court’s action under the authority of R. C. 2945.72(H) occurred after the expiration of the statutory period within which appellee should have been brought to trial.

Accordingly, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Celebrezze, C. J., W. Brown, P. Brown and Sweeney, JJ., concur. Herbert, Locher and Holmes, JJ., dissent.

2 Because appellee was incarcerated solely on the pending charge of burglary, State v. Ladd (1978), 56 Ohio St. 2d 197, 383 N.E. 2d 579, the triple-count provisions of R. C. 2945.71(D) are applicable.