¶1 concurring.
¶2 I concur in the judgment but for different reasons.
¶3 A court has the power and duty to dismiss a criminal case which is not being prosecuted to the extent that it infringes on the defendant’s constitutional right to a speedy trial. Our opinion should not be construed to hold that that power is limited.
¶4 It would appear from the trial court’s entry of dismissal, which cited C.P.Sup.R. 8, that the dismissal was based on that rule, i.e., as a sanction for failure by the prosecutor to comply with that rule by seeking a continuance. It further appears that the trial court granted the dismissal because it felt it was required to under that rule. I agree with the majority that a dismissal with prejudice is not mandated, but again I would not restrict the trial court’s authority to dismiss on the grounds that failure to follow the Rules of Superintendence constituted evidence of a violation of the constitutional right to a speedy trial.
¶5 Finally, I would add a comment on the substance of the appellant’s claim of error. In effect, appellant argues that if C.P.Sup.R. 8(A) does not require a dismissal with prejudice, how is the rule to be enforced? What sanction is applied to protect the criminal defendant? The protection is found in Ohio’s speedy trial statute, R.C. 2945.72. If a defendant is bound over, waits sixty days, is discharged, and is subsequently indicted, those sixty days are included in the calculation of the statutory speedy trial deadlines. A defendant’s right to a speedy trial is protected whether the time is calculated as pre-indictment time, or post-indictment time, since the time begins to run from the date of the arrest, and not from the date of the indictment.
¶6 Thus, I concur in the reversal of this case.