COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68074 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MARCUS MCKEE : : Defendant-appellant : : DATE OF ANNOUNCEMENT : SEPTEMBER 21, 1995 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-313200 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: GEORGE J. SADD, ESQ. PATRICK E. TALTY, ESQ. Assistant County Prosecutor Suite 211 8th Floor, The Justice Center 20800 Center Ridge Road 1200 Ontario Street Rocky River, OH 44116-4386 Cleveland, OH 44113 - 2 - PATTON, C.J. Defendant-appellant, Marcus McKee ("appellant") appeals from the trial court's ruling denying his motion to dismiss which alleged his right to a statutory speedy trial was violated and his constitutional right to protection against double jeopardy was violated. On January 8, 1993, the East Cleveland Police Department arrested appellant following the execution of a search warrant at 13520 Woodworth Avenue, Apartment #3, East Cleveland, Ohio. The police seized more than two hundred grams of crack cocaine and more than fifty grams of cocaine powder from that location, among other items. The United States Treasury Department Bureau of Alcohol, Tobacco and Firearms assisted members of the East Cleveland Police Department in conducting the raid. Appellant was officially charged by the city of East Cleveland on January 10, 1993, for aggravated drug trafficking, and possession of cocaine exceeding three times the bulk amount but less than one hundred times the bulk amount. On January 13, 1993, a federal arrest warrant was issued for the appellant based on the January 8, 1993 arrest. On January 14, 1993, appellant was placed under federal arrest and brought before a magistrate. On that same day the city of East Cleveland dismissed all charges against appellant. On January 21, 1993, a pre-trial detention hearing was held before the magistrate as to the appellant. Thereafter, the - 3 - government's motion for pre-trial detention was granted. Appellant was consequently in custody of the federal government. On April 20, 1994, a Cuyahoga County Grand Jury indicted appellant in case number CR 309850, based on the January 8, 1993 incident. On April 21, 1994, the United States Attorney for the Northern District of Ohio dismissed the indictment against appellant pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure and leave of court was granted for the filing of the dismissal. On April 25, 1994, appellant was arraigned in Cuyahoga County Court of Common Pleas, at this time he made bond and was therefore not incarcerated. On August 22, 1994, the state dismissed the charges against the appellant in case number 309850. On that same day the state reindicted appellant on the same charges under case number 313200. On September 13, 1994, the state of Ohio proceeded to trial on case number 313200. Appellant's first assignment of error states: I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO DISMISS FOR LACK OF SPEEDY TRIAL. Appellant maintains the trial court erred when it denied his motion to dismiss for lack of speedy trial. Specifically, appellant claims that pursuant to R.C. 2945.71 the state had until July 19, 1994, to bring him to trial, since the state failed to do so he was denied his right to a speedy trial. R.C. 2945.71 states in relevant part: - 4 - (C) A person against whom a charge of felony is pending: * * * (2) Shall be brought to trial within two hundred seventy days after his arrest. * * * (E) For purposes of computing time under divisions *** (C)(2) *** of this section, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days. The Supreme Court of Ohio has held that the time period between the dismissal of an original criminal charge and a subsequent indictment is tolled and the speedy trial period does not begin to run until the appellant is arrested pursuant to a subsequent indictment. State v. Broughton (1991), 62 Ohio St.3d 253, 259. Specifically, the Court in Broughton stated: For purposes of computing how much time has run against the state under R.C. 2945.71 et seq., the time period between the dismissal without prejudice of an original indictment and the filing of a subsequent indictment, premised upon the same facts as alleged in the original indictment, shall not be counted unless the defendant is held in jail or released on bail pursuant to Crim.R. 12(I). The arrest of a defendant, under a subsequent indictment which is premised on the same underlying facts alleged in a previous indictment, is the proper point at which to resume the running of the speedy-trial period. (R.C. 2945.71 et seq., construed and applied.) - 5 - Broughton, supra, paragraphs one and two of the syllabus. In the present case, appellant was arrested by the city of East Cleveland on January 8, 1993. Appellant was originally indicted on January 10, 1993. On January 14, the city of East Cleveland dismissed the charges against the appellant. Appellant was incarcerated for 7 days with the city of East Cleveland. Applying R.C. 2945.71 (E) this counts as a 21 day period. Appellant's federal charges and incarceration do not apply to the case before us. After appellant's federal charges were dismissed he was indicted on April 25, 1994, under case number CR 309850 Appellant's trial began on September 13, 1994. Therefore, from April 25, 1994, the time of the second indictment to the time of trial, September 13, 1994, is a period of 142 days. This 142 days plus the 21 days from the original indictment total a period of 163 days. Accordingly, appellant went to trial within the 270 day period mandated by R.C. 2945.71. Accordingly, appellant's first assignment of error is overruled. Appellant's second assignment of error states: II. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO DISMISS ON THE BASIS OF DOUBLE JEOPARDY. Appellant claims that the trial court erred when it denied his motion to dismiss on the basis of double jeopardy. Specifically, appellant asserts that the dismissal in federal court precludes the - 6 - court of common pleas to try him on the same charges arising from the same arrest. The Ohio Supreme Court has held "[t]ermination of [a] proceeding before jeopardy has attached does not entitle an accused to relief under Double Jeopardy Clause. Jeopardy does not attach when trial court grants motion to dismiss indictment." State v. Larabee (1994), 69 Ohio St.3d 357, syllabus. Furthermore, it has long been the rule in Ohio that "the power of a state to prosecute under state law for the same act a defendant who has already been prosecuted under federal law satisfies a legitimate state interest in preserving 'the historic right and obligation of the States to maintain peace and order within their confines. * * *' State v. Fletcher (1991) 26 Ohio St.2d 221, 226-227, See, also, Heath v. Alabama (1985), 474 U.S. 82, 88-90. In the present case, appellant was never convicted in federal court. As previously stated, the federal indictment was dismissed. Therefore, double jeopardy does not attach pursuant to Larabee, supra. Moreover, pursuant to Fletcher, supra the state of Ohio is permitted to prosecute under state law even if appellant was convicted in federal court, which he was not. Accordingly, we find not merit in appellant's second assignment of error. Judgment affirmed. - 7 - 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 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. SPELLACY, J. O'DONNELL, J., CONCUR. CHIEF JUSTICE JOHN T. PATTON 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, .