COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68790 CITY OF CLEVELAND : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ROBERT FITZGERALD : OPINION : : PER CURIAM DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 21, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court, No. 94-TRC-073534. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Anita Laster, Esq. Assistant City Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Albert A. Giuliani, Esq. 410 Leader Building Cleveland, OH 44114 -2- PER CURIAM: This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the record from the Cleveland Municipal Court and the briefs of the parties. Defendant-appellant, Robert Fitzgerald, appeals his conviction of "Driving or Physical Control While Under The Influence" in violation of Cleveland Municipal Code 431.01 and 433.01(A)(4). Defendant-appellant's sole assignment of error states the trial court erred when it denied defendant-appellant's motion to dismiss based on speedy trial grounds. Specifically, defendant-appellant argues one hundred and thirty-five days had elapsed between his arrest and the beginning of trial in violation of R.C. 2945.71 which mandates a trial for a first degree misdemeanor within ninety days. For the following reasons, the judgment of the trial court is affirmed. The time within which a hearing or trial must be held is set forth in R.C. 2945.71 which reads in pertinent part: * * * (B) A person against whom a charge of misdemeanor, other than a minor misdemeanor, is pending in a court of record, shall be brought to trial: * * * (2) Within ninety days after his arrest or the service of summons, if the offense charged is a misdemeanor of the first or second degree, or other misdemeanor for which the maximum penalty is imprisonment for more than sixty days. -3- Extensions of time for hearings and/or trials are governed by R.C. 2945.72 which states in pertinent part: 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: * * * (G) Any period during which trial is stayed pursuant to an express statutory requirement, or pursuant to an order of another court competent to issue such an order; (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; * * * In the case sub judice, defendant-appellant was arrested on October 29, 1994. On October, 31, defendant's request for a continuance was granted until November 22, 1994. On November 22, 1994, defendant-appellant entered a plea of not guilty and a pretrial was set for December 15, 1994. At the pretrial, defendant-appellant waived his right to a speedy trial. The trial was set for January 30, 1995. On January 30, 1995, the matter was continued upon the court's own motion until March 13, 1995 when the case was heard. It is well settled that an accused may waive his/her constitutional right to a speedy trial provided that such waiver is knowingly and voluntarily made. Barker v. Wingo (1972), 407 U.S. 514. Consistent with this principle, the Ohio State Supreme -4- Court has found the statutory trial provisions set forth in R.C. 2945.71 to be coextensive with constitutional speedy trial provisions. See State v. O'Brien (1987), 34 Ohio St.3d 7. "To be effective, an accused's waiver of his/her constitutional and statutory rights to a speedy trial must be expressed in writing or made in open court on the record." State v. King (1994), 70 Ohio St.3d 158, syllabus. From a review of the record there seems no dispute that as of December 15, 1994, twenty-four days had been charged towards the right to a speedy trial and twenty-two days had been waived by defendant-appellant's own motion pursuant to R.C. 2945.72(H). However, defendant-appellant argues the written waiver made on December 15, 1994 was only a limited waiver of his rights until the January 30, 1995 trial date, not a waiver of the entire period between December 15, 1994 and January 30, 1995. That is why, defendant-appellant argues, January 30, 1994 was written on the limited waiver. (Both parties agree 1994 was a clerical error and should have been 1995.) Assuming arguendo defendant-appellant's written waiver was limited to January 30, 1995, the number of days from December 15, 1994 through January 30, 1995 are waived as it applies to defendant-appellant's right to a speedy trial. See State v. Flonnoy (May 2, 1991), Cuyahoga App. No. 58491, unreported; R.C. 2945.72(H). If defendant-appellant had intended the waiver to apply merely from January 28 to January 30, it must have expressed it on the waiver form. Otherwise, the period of -5- continuance begins on the date the motion is filed with the court. See State v. Ebright (1992), 83 Ohio App.3d 846. Again, the trial was held on March 13, 1995. As such, assuming the waiver was limited to January 30, 1995 and ignoring the court's own continuance, there could only be a maximum of sixty-five days charged against defendant-appellant's right to a speedy trial. The trial court did not err in denying defendant- appellant's motion to dismiss. Judgment affirmed. -6- 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 Cleveland Municipal Court 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. DAVID T. MATIA, PRESIDING JUDGE JAMES M. PORTER, JUDGE TERRENCE O'DONNELL, 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 journalization, at which time it will become the judgment and .