State v. Mincy

Celebrezze, C.J. The sole issue to be determined in this appeal is whether a trial court may wait until after the expiration of the statutory time ■within which a criminal defendant must be brought to trial to file its journal entry continuing the case and setting forth the reasons for granting the continuance. R.C. 2945.71(C)(2) provides that a person against whom a felony charge is pending shall be brought to trial within two hundred seventy days after his arrest. R.C. 2945.71(E) states that for purposes of computing time under R.C. 2945.71(C)(2), each day during which the accused is held in jail in lieu of bail on the pending charge is counted as three days. Appellee was arrested on July 28,1980 and was immediately placed in custody and remained in jail. As a consequence, appellee should have been brought to trial on or before October 27, 1980. However, R.C. 2945.72 states: “The time within which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may be extended only by the following: l i * * * “(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.” Thus, the time limit provisions in R.C. 2945.71 are flexible to a degree. In fact, this court has on several occasions determined that sua sponte extensions beyond the time prescribed in R.C. 2945.71 were reasonable. See, e.g., State v. Lee (1976), 48 Ohio St. 2d 208 [2 O.O.3d 392], and Aurora v. Patrick — 8 — (1980), 61 Ohio St. 2d 107 [15 O.O.3d 150]. A close inspection of these cases reveals that the continuances were made by journal entry prior to the expiration of the time limit in R.C. 2945.71. In State v. Montgomery (1980), 61 Ohio St. 2d 78 [15 O.O.3d 119], where we upheld the discharge of the defendant, it was stated: <<* * * [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.” Id. at 81. In the case sub judiee, the state argues that because the trial was set within the ninety day period and the continuance was reasonable, no violation of R.C. 2945.71 occurred even though no entry had been made prior to the expiration of the ninetieth day.1 We cannot agree. This court has previously condemned after-the-fact extension and does not find it to be a meaningful distinction that appellee’s trial was initially scheduled within the statutory time limit. The General Assembly has placed a burden upon the prosecution and the courts to try criminal defendants within a specified time after arrest. If we were to follow the state’s reasoning, the only burden upon the prosecution and the courts would be to assure that a trial is scheduled within the appropriate time limit as long as it could subsequently be explained why the defendant was not brought to trial within the statutory time frame. It is obvious such reasoning does not comport with the purposes of the speedy trial statutes. See State v. Pudlock (1975), 44 Ohio St. 2d 104 [73 O.O.2d 357]; State v. Siler (1979), 57 Ohio St. 2d 1 [11 O.O.3d 1]. It is undisputed that in the case sub judiee the ninety-day period within which appellee was to be brought to trial expired before the trial court filed a journal entry continuing the case. Consequently, we find that appellee, prior to the expiration of the statutory time limit, was entitled to one of the following: (1) a trial on the charges or, (2) if his case was being continued by the court or prosecutor, the reason he was not being tried. Since a court may only speak through its journal, it is necessary that such an entry be spread upon its journal prior to the expiration of the statutory time limit. See, e.g., Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275 [58 O.O. 51]; Schenley v. Kauth (1953), 160 Ohio St. 109 [51 O.O. 30].2 — 9 — We therefore hold that, when sua sponte granting a continuance under R.C. 2945.72(H), the trial court must enter the order of continuance and the reasons therefor by journal entry prior to the expiration of the time limits prescribed in R.C. 2945.71 for bringing a defendant to trial. Accordingly, the judgment of the court of appeals is affirmed.3 Judgment affirmed. W. Brown, Sweeney and Krupansky, JJ., concur. Locher, Holmes and C. Brown, JJ., dissent. Footnotes [1] Today’s decision should in no way be construed as passing on the reasonableness of the grounds for the sua sponte continuance in the case at bar. That issue is clearly not before us. [2] This provision does not place an undue burden on the trial court. The statute mandates a trial within a specified time. If it should develop that the trial cannot go forward as scheduled, it necessarily follows that the events which would force postponement of the trial would come to the attention of the trial court on or before the scheduled trial date. Thus, it is reasonable to conclude that a trial court should be able to prepare and file a journal entry before the statutory time limit expires. — 9 — In the case at bar, the trial court knew on the eighty-seventh day of appellee’s confinement that the trial would not be held as scheduled. As a result, the trial court had three days to prepare and file a journal entry continuing appellee’s case before the ninety-day period elapsed. We believe the trial court had ample time to file a journal entry explaining to the appellee why his trial date was extended beyond the statutory time period. [3] We are reluctantly aware that our decision requires that appellee, convicted by a jury of a serious offense, be discharged and that another prosecution on this charge is .barred. R.C. 2945.73(D). However, we are equally mindful that we have consistently held that the speedy trial statutes are mandatory and must be strictly enforced. State v. Pachay (1980), 64 Ohio St. 2d 218, 221 [18 O.O.3d 427].