COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59769 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : RONALD SMITH : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JANUARY 30, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-247192 JUDGMENT: Reversed and Judgment Vacated. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES DONALD GREEN Cuyahoga County Prosecutor Marion Building, #307 8th Floor Justice Center 1276 W. 3rd Street 1200 Ontario Street Cleveland, Ohio 4411 Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: Ronald Smith, Defendant-Appellant ("Appellant"), timely appeals his conviction for Aggravated Robbery in violation of R.C. 2911.01; which included a firearm specification. The sole issue on appeal is whether Appellant was denied a speedy trial pursuant to R.C. 2945.71. Because we find that the trial court erred as a matter of law, we reverse. Appellant is hereby discharged, and the sentence is vacated. The facts of this case were not disputed. On December 3, 1989, Appellant was arrested and later indicted for Aggravated Robbery with a firearm specification. On March 2, 1990, the case was scheduled for trial, but was continued by the trial court on its own motion because of a conflict in the trial court's schedule. In fact, the trial judge was in a trial on a different case on the day that Appellant's trial was scheduled. The journal entry that continued the case appeared to have been signed by the trial judge on March 5, 1990, but was not filed until March 7, 1990. The March 2, 1990 journal entry appeared to continue the case to March 5, 1990, although this fact was not stated on the journal entry. On March 6, 1990, Appellant filed a motion to dismiss pursuant to R.C. 2945.71, which was denied after a hearing; thereafter, the case proceeded to trial. Prior to the trial, Appellant was in jail and apparently had not made bail. He was in jail from the date of his arrest until March 6, 1990, the date of his jury trial. -3- On March 9, 1990, the jury returned a verdict of guilty to the indictment for Aggravated Robbery and further found Appellant possessed a firearm. Appellant was referred to the probation department for a pre-sentence report, and the case was continued for sentencing. On March 29, 1990, Appellant was sentenced to an indefinite term of ten to twenty-five years and an additional three years of actual incarceration for the firearm specification to be served consecutively. He was also assessed court costs. Appellant's sole assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING THE APPELLANT'S MOTION FOR DISMISSAL, AS THE APPELLANT WAS NOT BROUGHT TO TRIAL WITH THE TIME LIMITS SET FORTH IN R.C. 2945.71. The Ohio Supreme Court has held 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 therefore by journal entry prior to the expiration of the time limit prescribed in R.C. 2945.71 for bringing a defendant to trial." State v. Mincy (1982), 2 Ohio St. 3d 6. The date a journal entry is filed is the day in which it is entered for purposes of journalization. Id. at 7. In the instant case, Appellant was charged and indicted for Aggravated Robbery, an aggravated felony of the first degree, for which he was required to be tried within two hundred and seventy days of his arrest. R.C. 2945.71(C)(2). Each day Appellant awaited trial must be treated as three, because he was in jail in lieu of bail from the time of his arrest until trial. R.C. 2945.71(E). Therefore, Appellant was required to be tried within -4- ninety days absent any extension of time pursuant to R.C. 2945.72. A careful review of the record reveals that the trial court failed to execute and to file its journal entries ordering the continuances, which were sua sponte, prior to the time limit as set forth in R.C. 2945.71. There were ninety days between December 3, 1989 and March 3, 1990. Therefore, the trial court had a duty to commence trial, or file a journal entry ordering a continuance pursuant to R.C. 2945.72 on or before March 3, 1990. Thus, Appellant's sole assignment of error is well taken. Judgment is reversed, and Appellant is ordered discharged and his sentence vacated. -5- This cause is reversed, and sentence is vacated. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. PATTON, P.J., and HARPER, J., CONCUR. PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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. .