COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71911 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION CHARLES SINGLETON : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION December 30, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE CUYAHOGA COUNTY COMMON PLEAS COURT CASE # CR-332774 JUDGMENT: REVERSED. APPELLANT DISCHARGED. DATE OF JOURNALIZATION: ------------------------ APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor L. CHRISTOPHER FREY(#0038964) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender KATHLEEN W. WOOD (# 0066811) Assistant Public Defender 100 Lakeside Place 1200 West Third Street N.W. Cleveland, Ohio 44113-1569 SPELLACY, J.: Defendant-appellant, Charles Singleton ( appellant ), appeals -2- his conviction for one count of drug abuse in violation of R.C. 2925.11, and two counts of drug trafficking in violation of R.C. 2925.03. Appellant assigns the following errors for our review: I. CHARLES SINGLETON WAS DENIED HIS RIGHT TO A SPEEDY TRIAL IN VIOLATION OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS AND R.C. 2945.71, 2945.72, 2945.73 WHEN HE WAS TRIED TWENTY-SEVEN (27) DAYS IN EXCESS OF THE MANDATORY DEADLINE FOR SPEEDY TRIAL. II. CHARLES SINGLETON WAS DENIED DUE PROCESS OF LAW WHEN THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING OTHER ACTS EVIDENCE PROHIBITED UNDER EVID.R. 404(b) AND EVID.R. 403, AND FAILED TO JUSTIFY ITS RULING OR TO GIVE THE JURY A LIMITING INSTRUCTION. III. AS NO RELIABLE EVIDENCE LINKED CHARLES SINGLETON WITH ANY OF THE OFFENSES CHARGED, HIS CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Finding appellant's appeal to have merit, the judgment of the trial court is reversed. I. On January 23, 1996, appellant was issued a four-count indictment. Count I of the indictment charged appellant with drug abuse in violation of R.C. 2925.11 with two furthermore clauses and a violence specification. Count II of the indictment charged appellant with drug trafficking in violation of R.C. 2925.03. Count III of the indictment also charged appellant with drug trafficking in violation of R.C. 2925.03 with a furthermore clause and a violence specification. Count IV of the indictment charged appellant with possession of criminal tools in violation of R.C. 2923.24 with a violence specification. -3- On October 23, 1996, appellant moved to dismiss the charges against him pursuant to R.C. 2945.71. The trial court overruled appellant's motion and the case proceeded to trial. On November 4, 1996, the jury found appellant guilty on Count I, drug abuse, in violation of R.C. 2925.11 and on Counts II and III, drug trafficking, in violation of R.C. 2925.03. Appellant was found not guilty on Count IV. By entry dated December 10, 1996, appellant was sentenced for a term of two years on Counts I and II which were to be served concurrently with each other. On Count III, appellant was sentenced to a term of three years to five years to be served concurrently with Counts I and II, with three years mandatory time of actual incarceration. On December 16, 1996, the trial court corrected appellant's sentencing to reflect three years to fifteen years on count III. II. Appellant's first assignment of error raises the issue of whether the proceedings below were conducted within the time frame specified by Ohio's speedy trial statute. R.C. 2945.71(C)(2) provides that a person against whom a felony charge is pending shall be brought to trial within two hundred seventy days after his arrest. Furthermore, R.C. 2945.73(B) provides, in pertinent part, that a person charged with an offense shall be discharged if not brought to trial within the time required by sections 2945.71 and 2945.72 of the Revised Code. Pursuant to State v. Pachay (1980), 64 Ohio St.2d 218, the speedy -4- trial statute must be strictly construed in favor of the accused. Collura, supra. For purposes of computing time under R.C. 2945.71(C)(2), 2945.71(E) states that each day during which the accused is held in jail in lieu of bail on the pending charge is counted as three days. R.C. 2945.72 further provides: The time within which an accused must be brought to trial, or, in the case of a felony, to preliminary hearing and 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. Thus, the time limit provisions in R.C. 2945.71 are flexible to a degree. See State v. Mincy (1982), 2 Ohio St.3d 6; State v. Lee (1976), 48 Ohio St.2d 208. However, a continuance will be charged against the state unless the court does all of the following: records the continuance; identifies the party to whom the continuance is chargeable; and indicates the reason for the continuance. State v. Collura (1991), 72 Ohio App.3d 364, 368, citing State v. Geraldo (1983), 13 Ohio App.3d 27, paragraph four of the syllabus, approved in State v. Benson (1985), 29 Ohio App.3d 321, 323. The record in the cause sub judice indicates that appellant was arrested on November 10, 1995, was immediately placed in custody and remained in jail until November 13, 1995. Trial was not conducted until October 23, 1996, at which time appellant was -5- found guilty on three of the four counts brought against him. In his computation of days under R.C. 2945.71 and 2945.72, appellant does not count the time period between February 28 and March 25, 1996. Appellant excludes the time pursuant to R.C. 2945.72(H) due to his requests for continuances. Appellant also excludes the time period between September 26 and October 22, 1996, pursuant to R.C. 2945.72(H) due to the trial court's sua sponte continuance of the trial date. Appellant accordingly computes his speedy trial time between November 10, 1995, and October 23, 1996, a total of two hundred ninety seven days. This total includes six days which appellant added pursuant to the triple-count mechanism of R.C. 2945.71(E) for the time he was jailed in lieu of bond and excludes the time tolled by continuances requested by both appellant and the trial court. The state does not dispute appellant's computation of these dates. At trial, however, the lower court, after reviewing a blue card used to maintain the continuances requested by both appellant and the state, stated: Let the record reflect that I'm reviewing the blue card, which is 332774 D, and the blue card indicates that following: the first pretrial in this case was on 2-28. It was reset at defendant's request until 3-11. On 3-11, there was a pretrial reset until 3-25 at defendant's request. 3-25, reset again at defendant's request until 4-4. At 4-4, it was reset at defendant's request until 4-22. Now, the first time that this case was set for trial was on 5-15. That was set at the 4-22 pretrial. That was reset until 6-4, at the state's request because they were going to reindict. The next one, at 6-4, the trial was reset until 7-10 and that was also at the -6- state's request because they were going to reindict. On 6-14, there was an arraignment where they were reindicted. And then the remaining pretrials are 7-17, 7-29, 7-31, 9-4, and I believe I was in trial on 9-4, wasn't I? * * * So at the court's request, we reset it to 9-25 and 9-25 I was again on trial and that continues it to 10-23 and that's today. * * * Although the trial court maintains that the above continuances were made at appellant's request, the state's request and on its own motions, the record before this court reveals that the March 11, 1996, entry indicated that the case was continued until March 25, 1996. There are no more entries until September 30, 1996, when the trial court sua sponte continued the case from September 26 to October 23, 1996. The trial court's journalization of these entries provided that appellant had moved for the continuances, but the trial court failed to provide specific reasons for appellant's requests per Collura, supra. The trial court's sua sponte continuance on September 26, 1996, also failed to provide the trial court's reason for its continuance. Our review of the record reveals that appellant's computation of the number of days which passed before he went to trial was correct. Furthermore, appellant's contention that the charges brought against him should have been dismissed is not disputed by the State. It is highly regrettable that someone such as appellant should benefit by our observance of what many would consider a technicality. See State v. Stamper (1995), 102 Ohio App.3d 431. -7- However, the concept of due process as embodied in the constitutional right to a speedy trial is found in both the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution. It was even set forth in R.C. 2945.71 by our legislature as recently as 1981. Stamper, supra. The writers of the Constitution and our legislators obviously did not think the concept of a speedy trial was an insignificant technicality, and neither does this court. Thus, in such a situation as we now face, our concern must be with the preservation of the legal process. Accordingly, appellant's first assignment of error is sustained. III. Due the disposition of appellant's first assignment of error, supra, appellant's second and third assignments of error are moot. Thus, based upon the foregoing, the judgment of the trial court is reversed, and judgment is entered for appellant. Judgment reversed. Appellant discharged. -8- The clerk of the court of appeals is hereby instructed to immediately journalize this entry and opinion, which now becomes the final judgment and order of this court. It is, therefore, ordered that appellant recover of appellee his costs herein taxed. 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. JOSEPH J. NAHRA, P.J. and TERRENCE O'DONNELL, J. CONCUR. .