COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69607 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION KERMIT F. GABEL : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 31, 1996 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-262742 JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: SHERRY F. MCCREARY (#0031337) Assistant Prosecuting Attorney The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender BY: VALERIE R. ARBIE (#0061962) Assistant Public Defender 100 Lakeside Place 1200 West Third Street N.W. Cleveland, Ohio 44113 - 2 - SPELLACY, C.J.: Defendant-appellant Kermit F. Gabel ("appellant") appeals his conviction for two counts of aggravated burglary, two counts of theft, and one count of possession of criminal tools. Appellant assigns the following errors for review: I. APPELLANT WAS DENIED HIS STATUTORY RIGHT TO A SPEEDY TRIAL PURSUANT TO R.C. 2945.71 IN VIOLATION OF THE RIGHTS GUARANTEED HIM BY THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTION 10, OF THE OHIO CONSTITU- TION WHEN THE TRIAL COURT DENIED COUNSEL'S MOTION FOR DISMISSAL. II. THE APPELLANT'S RIGHTS UNDER THE SIXTH AMEND- MENT WERE VIOLATED AND HE SUFFERED UNDUE PREJUDICE WHEN THE STATE OF OHIO FAILED TO OBTAIN TEMPORARY CUSTODY OF HIM FOR SENTENCING FROM THE STATE OF ILLINOIS FOR TWO AND ONE- HALF YEARS AFTER HAVING PLACED A DETAINER PURSUANT TO THE INTERSTATE AGREEMENT ON DETAINERS WITH THE ILLINOIS AUTHORITIES FOR HIS RETURN. Finding the first assignment of error to have merit, the judgment of the trial court is reversed. I. On January 12, 1991, appellant was arrested by Shaker Heights and Beachwood police officers near a cemetery on Green Road after leading police on a foot chase through the area. Property, primarily sterling silver, taken from two different Shaker Heights residences was discovered along the path of the pursuit. Appellant subsequently was indicted for aggravated burglary, theft, and possession of criminal tools. - 3 - Prior to the commencement of trial, appellant filed a motion to dismiss for the state's failure to bring him to trial within the statutory limitations. The trial court overruled the motion after holding a hearing on the matter and proceeded to trial on September 26, 1991. Appellant did not appear for the second day of trial. Trial continued in his absence with the jury returning a guilty plea on all five counts. On August 23, 1995, appellant was returned to the trial court for sentencing from Illinois where he is serving a twenty-year sentence for charges unrelated to the instant conviction. II. In his first assignment of error, appellant contends he was denied his right to a speedy trial when the trial court denied appellant's motion to dismiss. Appellant submits that the charges against him should be dismissed as he has presented a prima facie case that his trial date exceeded the two hundred seventy days permitted by R.C. 2945.71. Appellant avers the trial court's journal entries do not reflect that most of the continuances were chargable to appellant. R.C. 2945.71(C)(2) provides that a defendant against whom a felony is pending must be brought to trial within two hundred seventy days of his arrest. Each day an accused is held in jail in lieu of bail on the pending charge is counted as three days. R.C. 2945.71(E). These statutory provisions are mandatory and must be complied with by the trial court and the state. State v. - 4 - Montgomery (1980), 61 Ohio St.2d 78. Once a defendant demonstrates that two hundred seventy days have expired, a prima facie case for discharge is established. The state then bears the burden of proving time was extended or tolled under R.C. 2945.72 so that the defendant will be tried in less than the statutory limit. State v. Geraldo (1983), 13 Ohio App.3d 27. If the accused is not brought to trial within the statutory time limit, the defendant is discharged as a matter of law. Any further criminal proceedings against the accused based upon the same actions are barred. State v. Eberhardt (1978), 56 Ohio App.2d 193. The time for trial may be extended by any period of delay occasioned by the neglect or improper act of the accused, R.C. 2945.72(D); any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused, R.C. 2945.72(E); and 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, R.C. 2945.72(H). The granting of a continuance must be recorded by the trial court in its journal entry which must also identify the party to whom the continuance is chargeable. If the trial court is granting a sua sponte continuance, the journal entry must be entered before the expiration of the statutory time limit and set forth the reasons for the continuance. State v. Mincy (1982), 2 Ohio St.3d 6. The trial court is not required to briefly state the reasons - 5 - for granting a continuance which is at the defendant's request. State v. Baker (1993), 92 Ohio App.3d 516. The standard of review in speedy trial cases is to simply count the days as directed in R.C. 2945.71 et seq. State v. DePue (1994), 96 Ohio App.3d 513, 516. Appellant was arrested on January 12, 1991. The date of arrest is not included in the speedy trial computation. State v. McCornell (1993), 91 Ohio App.3d 141, 145. Therefore, time for appellant began to run on January 13, 1991. Appellant was held in jail until February 19, 1991, triggering the triple count provision of R.C. 2945.71(E). Those thirty-eight days when counted as three total one hundred fourteen days. A pretrial was scheduled for May 3, 1991, but was continued at appellant's request until May 24, 1991. That pretrial was continued until May 30, 1991. Trial was continued until June 6, 1991, at appellant's request. On September 11, 1991, appellant's motion to dismiss for lack of a speedy trial was heard. Trial was continued until September 26, 1991, at appellant's request. Therefore, the record shows three continuances granted at appellant's request. The first was from May 3, 1991, to May 24, 1991, for twenty-one days. The second was from May 30, 1991, to June 6, 1991, for seven days. The third was from September 11, 1991, until trial began on September 26, 1991. One hundred fourteen days was charged to the state for the time appellant was held in jail. Upon appellant's release from jail on February 19, 1991, until trial commenced on September 26, - 6 - 1991, an additional two hundred nineteen days passed, for a total of three hundred and thirty-three days between arrest and trial. The two continuances which the trial court's journal entries reflect were requested by appellant toll the time for twenty-eight days. Appellant's motion to dismiss tolls the time in which the defendant must be brought to trial until the motion is ruled upon. See State v. Mintz (1991), 74 Ohio App.3d 62. Further, appellant requested trial be continued until September 26, 1991. Therefore, the time between September 11, 1991, and September 26, 1991, is tolled. Appellant was brought to trial two hundred eighty-nine days after arrest or nineteen days past the statutory limit. The state argues other continuances were at appellant's request. However, this is not reflected in the trial court's journal entries. It is axiomatic that a court speaks through its journal. State v. King (1994), 70 Ohio St.3d 158. The trial court must indicate if the defendant requested the continuance or make a notation as to the reason for the continuance in its journal. See State v. Beach (1990), 66 Ohio App.3d 229. No reasons are given by the trial court in its journal for most of the continuances and those continuances therefore must be charged to the state. Whether there was a reasonable need for the continuance such as an unavailable witness is not reflected in the journal and cannot be considered as tolling the statutory time. Neither can testimony at the hearing on the motion be used in place of journal entries. See State v. Benson (1985), 29 Ohio App.3d 321. In order to toll the - 7 - statutory time limits, a journal entry must show that a continuance was requested by the defendant or give sufficient explanation as to the reason for the continuance. The duty has been placed upon the trial court to bring the accused to trial within the statutory period or demonstrate in its journal entries the reason for the continuances. Since that was not done in this case, appellant's first assignment of error has merit. III. Because of the disposition of the first assignment of error, appellant's second assignment of error is moot. Judgment reversed. - 8 - This cause is reversed. It is, therefore, considered that said appellant recover of said appellee(s) 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. DAVID T. MATIA, J. and TIMOTHY E. MCMONAGLE, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .