COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59430 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION ANDRE CRAWFORD : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 7, 1991 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-243,240 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES, Prosecutor WILLIAM AILER, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: GEORGE MINEFF, JR. Attorney at Law 736 Standard Building Cleveland, Ohio 44113 - 1 - FRANCIS E. SWEENEY, P.J.: Defendant-appellant, Andre Crawford, timely appeals from the judgment of the Cuyahoga County Court of Common Pleas, which denied his motion to dismiss the indictment brought on the basis that his right to a speedy trial had been denied. The cause proceeded to a jury trial wherein appellant was found guilty of robbery in violation of R.C. 2911.02 as charged in the indict- ment. Appellant raises one assignment of error for our review. For the reasons set forth below, we affirm the judgment of the trial court. Appellant's sole assignment of error is as follows: THE DEFENDANT/APPELLANT'S SPEEDY TRIAL RIGHTS WERE VIOLATED WHERE HIS TRIAL BEGAN SOME 278 DAYS FOLLOWING HIS ORIGINAL ARREST. Appellant contends his right to a speedy trial was violated in contravention of the Sixth Amendment to the U. S. Constitu- tion, Article I, Section 10 of the Ohio Constitution, and R.C. 2945.71(C)(2). This argument lacks merit. A complete record of the prior proceedings, including jour- nal entries of cases under indictments 238,700, 234,212 and 238,315, is lacking from the record on appeal of the instant case number 243,240. However, the relevant facts do not appear to be in dispute as taken from the parties' appellate briefs, which - 2 - include certified copies of journal entries and, when possible, from the lower court record of the instant case./1\ On April 19, 1989, appellant was arrested and charged with a robbery that allegedly occurred at a Higbee's store that same day. He was incarcerated from that date until this matter came to trial on September 25, 1989. On May 22, 1989, appellant was indicted for the April 19th Higbee's robbery in case number CR- 238,770. Prior to the April 19th Higbee's robbery, appellant was indicted in case number CR-234,212 for aggravated robbery, arraigned, and placed in custody. On February 24, 1989, appel- lant was released on bail in the aggravated robbery case number CR-234,212. Subsequently, appellant was arrested and charged with theft on another matter on March 27, 1989. Appellant was released on bail for this matter on March 31, 1989. Appellant was indicted in case number CR-238,315 for the March 27th theft on June 13, 1989, nearly two months after his arrest for the April 19th Higbee's robbery. He was arraigned on the March 27th theft on June 15, 1989 and apparently held in custody on both matters, and possibly including the aggravated burglary indictment in case number CR-234,212. In any event, /1\We note that the same result, affirming the trial court's decision, would be reached judging only from the limited record before us in that appellant was indicted on September 14, 1989 in case number CR-243,240, was placed in custody on this date, and was tried on September 25, 1989, well within the time require- ments found in R.C. 2945.71(C)(2). - 3 - case number CR-234,212 was dismissed for want of prosecution on June 19, 1989. Thereafter, case number CR-238,770 was called for trial on August 18, 1989. There, appellant's counsel withdrew a motion to dismiss for violation of his right to a speedy trial, and the state moved for a continuance for lack of available witnesses. The trial court, in a journal entry,/2\ denied the state's motion, dismissed case number CR-238,770, and wrote, "Defendant ordered dismissed in this case only (referring to case number CR-238770). C.R. 238,315 is scheduled for trial for September 20, 1989 ***." Notwithstanding the above journal entry, appellant remained in custody in case number CR-238,315. Subsequently, on September 14, 1989, appellant was rein- dicted for the April 19th Higbee's robbery in the present case number CR-243,240. Appellant was arraigned on September 19, 1989. Bond was set at one thousand dollars subject to an addi- tional amount being added pursuant to R.C. 2743.70 and R.C. 2949.091. This cause proceeded to trial on September 25, 1989, and appellant was found guilty as indicted on September 26, 1989. Subsequently, appellant pleaded guilty to an amended charge in case number CR-238,315. /2\Although this journal entry is not a part of the record in the instant lower court case number CR-243,240, a certified copy of the journal entry was attached to appellant's brief and assignment of error. - 4 - In the present case, appellant first argues that the triple count provisions in R.C. 2945.71(E) apply from April 19, 1989, the time in which appellant was first placed in custody in case number CR-238,770, until the time of trial on the present case number CR-243,240 on September 25, 1989. R.C. 2945.71(E) pro- vides in pertinent part that "each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days" under division (C)(2) of this section. Appellee argues that appellant was not held in jail in lieu of bond solely on the pending charge, to wit, case number CR-238,770 and reindicted case number CR-243,240, but was also being held in case numbers CR-234,212 and CR-238,315 beginning April 19, 1989. Appellant counters by noting that appellant was released on bail in case number CR-234,212 on February 24, 1989, and said case was subsequently dismissed on June 19, 1989 without any further action being taken. Appellant further points out that he was released on bail in case number CR-238,315 on March 31, 1989, in- dicted June 13, 1989, arraigned on June 16, 1989. Therefore, he argues that up until June 16, 1989, the triple count provisions of R.C. 2945.71(E) apply in that he was released on bail in both cases CR-234,212 and CR-238,315 prior to his confinement begin- ning April 19, 1989 for the instant robbery, and no further action was taken in either case until he was arraigned on June 16, 1989 in case number CR-238,315. However, as previously noted, the record on appeal does not reflect any of the prior - 5 - journal entries. In any event, we will assume that from April 19, 1989 until June 15, 1989, appellant was being held in jail in lieu of bail solely on case number CR-238,770. Therefore, we will apply the triple count provision of R.C. 2945.71(E) from April 19, 1989 to June 15, 1989, noting that an accused's right to a speedy trial does not begin to accrue until his arrest or detention on the charge. See, State v. Cross (1975), 48 Ohio App. 2d 357, court's syllabus. Appellant's arrest or detention on a charge, other than for case number CR-238,770, began on June 16, 1989, the date of his arraignment in case number CR-238,315. Therefore, beginning June 16, 1989, appellant ceased being held in jail in lieu of bail solely on the charge pending in case number CR-238,770, but rather appellant was then being held in jail in lieu of bail on at least two charges in cases number CR- 238,770 and CR-238,315. Accordingly, the triple count provision will apply to the fifty-eight days beginning April 19, 1989 to June 15, 1989 for a total of one hundred seventy-four days. It is not disputed that the period between June 16, 1989 and the dismissal of the indictment in case number CR-238,770 on August 18, 1989 may be counted at one for one for a total of sixty-four days. Likewise, the period between the reindictment on September 19, 1989 to the time of trial on September 25, 1989 may be counted one for one for a total of seven days. Disagreement arises with respect to the thirty-one days between the dismissal of the first indictment in case number CR- - 6 - 238,770 on August 18, 1989 and reindictment in the present case number CR-234,240 on September 19, 1989. Appellant argues that pursuant to State v. Justice (1976), 49 Ohio App. 2d 46, this intervening time period, in which appellant was held in jail, should count against the speedy trial requirements. Appellant further argues that if the period between dismissal of the first indictment and reindictment is not counted, the state would have succeeded in giving itself a continuance where the trial court had previously denied one. Appellant states the clear message to prosecutors would be to dismiss charges anytime they are not prepared for trial resulting in a continuance of "almost any length of time" before reindicting the defendant. Appellee argues that pursuant to this court's pronouncement in State v. Stephens (1977), 52 Ohio App. 2d 361, the time period between dismissal of the first indictment and reindictment is not counted against the speedy trial requirement because during such period, no charge is pending. Paragraph two of the court's syllabus in Stephens, supra, states: Where a nolle prosequi has been entered on an indictment or where a dismissal premised on the fault of the prosecution has been entered on an indictment and the defendant is subse- quently reindicted, the proper method of computing time pursuant to provisions of R.C. 2945.71 is to include the time incarcerated pending trial under the original indictment in addition to the time spent pending trial under the reindictment. Where the defendant is released without bail upon dismissal of the original indictment, the dismissal (sic.) is not entitled to have time between the dismissal and the reindictment included - 7 - pursuant to R.C. 2945.71, because during such period no charge is pending. However, if upon dismissal, the defendant is held in jail or on bail pursuant to Crim. R. 12(I), such time in jail or on bail will be included in the computation of time under R.C. 2945.71. It is noteworthy that the journal entry/3\ in case number CR- 238,770 dismissing the original indictment states, "Defendant ordered discharged in this case only." Therefore, appellant remained in jail in case number CR-238,315 only. Furthermore, the syllabus holdings in Justice, supra, and Stephens, supra, are entirely consistent with one another. Both cases hold that the proper method of computing time pursuant to provisions of R.C. 2945.71 is to include the time spent pending trial under the original indictment in addition to the time spent pending trial under the reindictment. The Justice decision did not have to reach the additional question concerning time spent in jail between dismissal of the original indictment and reindictment. The Stephens decision did reach this question and concluded that "[i]f the defendant is released without bail upon dismissal of the original indictment, the defendant is not entitled to have time between the dismissal and the reindictment included under R.C. 2945.71, because during such period, no charge is pending. However, if a defendant is held in jail or on bail under Crim. R. 12(I), such time in jail or on bail will be included in the computation of time under R.C. 2945.71." Stephens, supra, at /3\Said journal entry is brought before this court by way of appellant's brief and assignment of error. - 8 - 371-72. In the present case, appellant was ordered discharged in case number CR-238,770 only. While appellant remained in cus- tody, he remained so only in case number CR-238,315 and not pur- suant to Crim. R. 12(I). Crim. R. 12(I) allows a court to hold a defendant in custody upon the court's granting of a defendant's motion to dismiss pending the filing of a new indictment, information or complaint. Therefore, the time between the motion to dismiss in case number CR-238,770 and reindictment in case number CR-243,240 does not count against appellant's speedy trial rights since no charge was pending and appellant was discharged in case number CR-238,770. Although appellant remained in custody, he remained so only in case number CR-238,315 and not pursuant to Crim. R. 12(I). Appellant's contention that allowing the state to dismiss the indictment and subsequently reindicting the appellant would allow the state to grant itself a continuance "for almost any length of time" where one was previously denied is misfounded. A prosecutor must still comply with Crim. R. 12(I) by reindicting the defendant within fourteen days; otherwise, the defendant must be released from custody or bail. Furthermore, the time spent in jail or on bail is counted against the speedy trial requirements. Stephens, supra, syllabus. Finally, a prosecutor must commence a criminal prosecution within the applicable statute of limita- tions. Thus, the prospect of an unlimited continuance is tem- pered by this court's holding in Stephens, supra, Crim. R. 12(I), - 9 - and the applicable statute of limitations. In the present case, the time spent in jail between indictments was not counted since appellant was released in case number CR-238,770. Appellant was being held on another wholly independent matter; to wit, case number CR-238,315. Therefore, appellant was brought to trial pursuant to R.C. 2945.71 in two hundred forty-four days. Appellant's sole assign- ment of error is overruled. Judgment affirmed. - 10 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN F. CORRIGAN, J. JAMES D. SWEENEY, J. CONCUR PRESIDING JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .