COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67996 : ACCELERATED DOCKET CITY OF CLEVELAND : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JASON SAAH : : : Defendant-Appellant : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 1, 1995 CHARACTER OF PROCEEDING : Criminal appeal from Cleveland Municipal Court Case No. 94-CRB-11502 JUDGMENT : REVERSED AND APPELLANT DISCHARGED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: MARTHA R. McCORKE ROBERT M. DUNN Assistant Law Director MICHAEL P. McGUIRE City of Cleveland 3130 Mayfield Road City Hall, Room 106 #GW105 601 Lakeside Avenue Cleveland Heights, OH 44118-1754 Cleveland, Ohio 44147 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Local R. 25 of this court, the record from the Cleveland Municipal Court and briefs of counsel. Jason Saah appeals a judgment from the Housing Division of the Cleveland Municipal Court finding him guilty of eleven misdemeanor code violations and imposing fines which total $1,570.00. In this appeal he contends his speedy trial rights were violated. For the reasons set forth below, we agree, reverse the judgment of the trial court, and discharge appellant. On or about April 8, 1994, Joseph Aude, an Inspector for the Cleveland Health Department, inspected the premises of Saah Brothers II, a grocery store located at 3970 East 116th Street, Cleveland, Ohio, determined code violations, and on May 13, 1994, filed a complaint against Jason Saah, dba Saah Brothers II, the owner of the property. The complaint described thirteen health code violations, including inter alia failure to remove accumulation of refuse, failure to maintain premises free of rodents, failure to provide hot and cold running water, hand sink and soap and paper towels, failure to provide a dumpster for removal of garbage, failure to have grease bin emptied regularly, failure to display food in such a manner as to protect from possible contamination, sale of food products that are past sell- - 3 - by dates, and offering for sale food marked by a concealed, expired sell-date. On May 19, 1994, appellant received a summons requiring him to appear in court on June 22, 1994. On June 22, 1994 appellant entered a plea of not guilty to all charges and the trial court scheduled the case for pre-trial on July 6, 1994. Thereafter, the docket in this case reflects the case was continued on August 3, August 10, and August 31, 1994. It also reflects on September 6, 1994 appellant filed a motion to dismiss the case alleging denial of speedy trial rights. On September 7, 1994, the record shows the court found appellant guilty of eleven violations and not guilty of the sale of food past sell-by dates, dismissed the concealed, expired sell-date charge and imposed fines totalling $1570.00. Appellant paid $300.00 toward his fine and has appealed his convictions, assigning one issue for our review. I. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S MOTION TO DISMISS BASED ON HIS STATUTORY RIGHT TO A SPEEDY TRIAL BEING VIOLATED. Appellant believes he was denied his right to speedy trial because the court failed to comply with the provisions of R.C. 2945.71(B)(2), which require a misdemeanor trial to be commenced within ninety days of the date of service of summons. Appellee City of Cleveland has not filed any brief with this court. T h e - 4 - issue, then, for resolution is whether appellant's right to a speedy trial was violated. We begin our analysis with R.C. 2945.71(B)(2), which requires that a person charged with a first degree misdemeanor shall be brought to trial within ninety days after service of summons. Since appellant received service of summons on May 19, 1994, trial should have been conducted within ninety days of that date. R.C. 2945.72 provides that the time for trial may be extended in certain situations and states in relevant part: "The time within which an accused must be brought to trial *** may be extended only by the following: "*** "(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." Further, R.C. 2945.73(B) provides that upon motion made at or prior to trial, a person charged with an offense shall be discharged if he is not brought to trial within the required statutory time. In this case, the record reflects appellant received service of the complaint alleging thirteen first degree misdemeanors on May 19, 1994, but the trial judge did not try the case until September 7, 1994, more than the ninety day statutorily allowed time limit which defines speedy trial. The record indicates the case had been continued on four separate occasions, but the trial judge never journalized either - 5 - the reasons for the continuance or which party made the continuance requests. The Ohio Supreme Court addressed this situation in State v. Mincy (1982), 2 Ohio St.3d 6, and stated in its syllabus: "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 limit prescribed in R.C. 2945.71 for bringing a defendant to trial." (Emphasis added) This court has also set forth the requirements for continuing a trial in State v. Benson (1985), 29 Ohio App.3d 321, stating in the headnote: "5. The test for whether a continuance sua sponte, or otherwise, may extend the speedy trial limitation is whether the granting of the continuance is journalized and identifies the party to whom the continuance is chargeable. In the case of a sua sponte continuance, the reason therefor must also be indicated in the journal entry." In order for a continuance to toll speedy trial time, the trial court in its journal entry must record such continuance, must identify the party to whom the continuance is chargeable, and must briefly indicate the underlying reasons necessitating the continuance. See State v. Collins (1993), 91 Ohio App.3d 10. If the trial court does record the continuance, but fails to establish who made the request or the reasons for such continuance, the ensuing time remains chargeable to the state. Id. at 16. In this case, the journal entries indicate the trial court did record each continuance, but failed to indicate which party - 6 - made the request and failed to indicate the underlying reasons necessitating the continuance. Therefore, in accordance with State v. Collins, supra, the ensuing time is chargeable to the city. The record reflects the total time elapsed between service of summons and trial to be beyond the statutory limits of R.C. 2945.71. As such, appellant's right to a speedy trial was violated in this case and the court erred in failing to grant the motion to dismiss. Accordingly, appellants convictions are vacated, the judgment of the trial court is reversed and appellant is discharged. This matter is remanded to the trial court to make the necessary correcting entries in the court docket. Judgment reversed. Appellant discharged. Case remanded. - 7 - This cause is reversed and appellant discharged. It is, therefore, considered that said appellant(s) recover of said appellee(s) 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. LEO M. SPELLACY, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE DIANE KARPINSKI, JUDGE 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 journalization, .