State v. Scolaro

¶1 dissenting.

¶2 As noted, the Supreme Court in State v. O’Brien (1987), 34 Ohio St.3d 7, 516 N.E.2d 218, did not favor us with the specific language therein found to be “unlimited” in duration.

¶3 I conclude that a waiver, otherwise valid, that waives speedy trial rights until the case is “called” by the court is a waiver of unlimited duration, as to which the principles of O’Brien apply. A defendant, by such waiver, has placed the timing of the trial squarely in the hands and under the control of the court. It thus behooves such defendant to take some affirmative action to reinstate or reactivate his speedy trial rights under both R.C. 2945.71, 2945.72, and the Ohio and United States Constitutions. This is the import of Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (holding that constitutional speedy trial rights may be waived), State v. Butler (1969), 19 Ohio St.2d 55, 48 O.O.2d 77, 249 N.E.2d 818 (holding that the state must bring the accused to trial within a reasonable time after the waiving accused demands his speedy trial rights), and State v. O’Brien, supra (placing the burden on the accused where a waiver of unlimited duration has been given by such accused).

¶4 Case Nos. 91AP070041, 91AP070042 and 91AP070049 through 91AP070056

¶5 A second judgment (November 7, 1988) deferred judgment on pending motions until after Hilton was decided:

¶6 “The above-captioned matter came on for consideration of the court on the State’s motion to amend and the motion of the defendant to dismiss this 17th day of October, 1988. Whereupon, the court heard the arguments and remarks of the attorneys for the parties.

¶7 “Being apprised that dismissals in similar cases (case nos. 88CR010041, 88CR010040, 88CR0010043, 88CR010042 and 88CR010039) are being appealed by the State, the court hereby defers judgment upon the motions under consideration until determination of said appeals and extends the time within *561 which these cases would otherwise be required to be tried for good cause shown.”

¶8 This order of the court is not a “call” of the case. Although we have no transcript of the hearing, it facially appears that the court was expressing concern about calling the cases for trial prior to a decision in the Hilton case and was postponing his decision to call the cases and rule on dismissal motions (for reasons other than speedy trial claims).

¶9 Nor can the November 7, 1988 order be construed as a modification of the prior speedy trial waiver. It was not an agreement or initiative of the defendants and was not approved by the parties or counsel.

¶10 I conclude that speedy trial time for these cases was tolled from the time the waiver was executed, September 29, 1988, until the issue was brought before the court.

¶11 Here the court (by its newly elected judge) initiated the concern about speedy trial by an order filed April 9, 1991. He instructed counsel to file appropriate motions, which were filed by May 9, 1991.

¶12 I thus further conclude that the speedy trial clock was not again started until the defendants, consistent with O’Brien, supra, filed their actions to dismiss by May 9, 1991.

¶13 The November 7, 1988 judgment does not modify the general waiver of September 29. It is a court order, not an agreement. It is not styled as a waiver, is not approved by the parties, and does not serve to continue the case pursuant to the agreement of the parties. The court merely states that it will defer judgment until after our court’s ruling in Hilton and companion cases, and the language extending the time in which the cases must be heard is cumulative of the express general waiver already on record.

¶14 After filing an express waiver, none of the parties demanded a trial in accordance with O’Brien, supra 2 The initial waiver therefore remained in effect, and the trial court erred in dismissing these cases.

¶15 Case Nos. 91AP070043 through 91AP070048 and 91AP070057 through 91AP070059

¶16 The time waiver in this set of cases (May 16, 1988) is different from that in the cases discussed above:

¶17*562 “Upon the agreement of the parties, and upon the further representation that the parties are engaged in plea negotiations which could lead to disposition of the above-captioned cases, and upon the further representation that the attorney for the defendants has cases with issues that could be dispositive of the above-captioned cases pending before the Ohio Supreme Court, it is hereby ORDERED, ADJUDGED AND DECREED that the pre-trial conferences and all motion hearings be continued until further call of the Court and that during the period of this continuance, the time within which these cases must otherwise be tried be extended.”

¶18 By like token, the agreed order of May 16,1988 in these cases conditions the speedy trial waiver upon the “call of the court.”

¶19 The summons were served on these appellees between January 22,1988 and January 26, 1988. The next filing affecting the speedy trial clock was the May 16, 1988 order, continuing the case and speedy trial time until call of the court. There was no “call of the court” before the defendants filed their speedy trial dismissal motions between April 9, 1991 and May 9, 1991. Appellees did nothing pursuant to O’Brien to demand a trial or object to the delay between May 16, 1988 and April 9, 1991. Therefore, the waiver remained in effect until April 9, 1991.

¶20 The speedy trial clock ran from January 22, 1988 until May 16, 1988. The clock was tolled from May 16, 1988 until April 9, 1991. The clock again ran from April 9, 1991 to July 10, 1991 when the cases were dismissed. At the time of the dismissal, the two hundred seventy chargeable days within which appellees must be brought to trial had not yet run. The trial court erred in dismissing these cases.

¶21 Assignment of error one should be sustained.

¶22 We should sustain the second assignment of error as to case Nos. 91AP070041, 91AP070042 and 91AP070049 through 91AP070056, upon the authority of O’Brien, supra, and as to 91AP070043 through 91AP070048 and 91AP070057 through 91AP070059 upon the authority of R.C. 2945.71, 2945.-72(H), State v. Pachay (1980), 64 Ohio St.2d 218, 18 O.O.3d 427, 416 N.E.2d 589, and O’Brien, supra.

¶23 The judgment of the Tuscarawas County Common Pleas Court should be reversed, and these cases be remanded for further proceedings according to law.