COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72018 CITY OF MAYFIELD HEIGHTS : : ACCELERATED CASE Plaintiff-Appellee : : JOURNAL ENTRY -vs- : : AND GEORGE CLEMENTS : : OPINION Defendant-Appellant : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION JULY 10, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE LYNDHURST MUNICIPAL COURT CASE NO. 94-TRC-4069A JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: DOMINIC J. VITANTONIO (#0052058) Mayfield Heights Prosecutor 6154 Mayfield Road Mayfield Heights, OH 44124 GEORGE J. ARGIE (#0034219) 6449 Wilson Mills Road Cleveland, Ohio 44143-3402 For Defendant-Appellant: CAROL R. GEDEON (#0017363) SCOTT D. WHITE (#0061601) 19443 Lorain Road Fairview Park, OH 44126 PER CURIAM: Defendant-appellant, George Clements ( appellant ), appeals his convictions for driving while under the influence of alcohol 2 and/or drugs of abuse and knowingly giving false information to a law enforcement officer. Appellant assigns the following error for our review: THE TRIAL COURT ERRED IN EXERCISING JURISDICTION OVER THE APPELLANT MORE THAN 180 DAYS AFTER APPELLANT HAD REQUESTED DISPOSITION OF PENDING CHARGES PURSUANT TO OHIO REVISED CODE SECTION 2941.401. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. I. On April 14, 1994, appellant was stopped by a Mayfield Heights police officer and issued the following five misdemeanor traffic citations: driving under the influence of alcohol and/or drugs of abuse in violation of Mayfield Codified Ordinance 333.01(A) (#94TRC04069B); possession of marijuana in violation of Mayfield Codified Ordinance 523.03(C)(2) (#94TRC04069B); failure to signal before changing lanes in violation of Mayfield Codified Ordinance 331.13 (#94TRC04069C); speeding in violation of Mayfield Codified Ordinance 333.03 (#94TRC04069D); and knowingly giving false information to a law enforcement officer in violation of Mayfield Codified Ordinance 505.105 (#94TRC04069E). On April 18, 1994, appellants pled not guilty to each of the charges. On September 23, 1994, November 2, 1994, and December 8, 1994, the trial court attempted to notify appellant that he was scheduled to appear in Lyndhurst Municipal Court for pre-trials on October 20, 1994, November 10, 1994, and December 22, 1994, 3 respectively. The notifications were returned to the Lyndhurst Municipal Court marked address unknown. On December 22, 1994, a capias was issued for appellant. And on January 26, 1995, the Lyndhurst Municipal Court issued a bench warrant for appellant for contempt for failure to answer traffic summons in violation of R.C. 2935.11. On June 23, 1995, appellant sent the Lyndhurst Municipal Court a formal request for disposition of pending charges pursuant to R.C. 2941.401. On December 23, 1996, appellant, after voluntarily waiving his right to counsel, appeared in Lyndhurst Municipal Court and withdrew his plea of not guilty and entered a plea of no contest to the charge of driving while under the influence of alcohol and/or drugs of abuse, as well as to the charge of falsification. Subsequently, the trial court found appellant guilty on both charges, but nolled and merged the charges for speeding, changing lanes without signaling, and possession of marijuana. (Journal Entry, January 24, 1997). On his conviction of driving while under the influence of alcohol and/or drugs of abuse, the trial court sentenced appellant to three days in jail, a fine of $550.00 and suspended appellant's license for 180 days. Appellant was credited for the jail time he served in Belmount Correctional Institution on a prior conviction. On his conviction for falsification, the trial court sentenced appellant thirty days in jail and fined appellant $350.00. The trial court, however, gave appellant thirty-days credit for the 4 time which he served at Belmont Correctional Institution. (Journal Entry, January 24, 1997). II. In his sole assignment of error, appellant contends that the trial court erred in exercising jurisdiction over him more than one hundred eighty days after he had requested disposition of pending charges. Thus, appellant asserts that his convictions for falsification and driving while under the influence of alcohol and/or drugs of abuse are contrary to law. If a defendant is incarcerated, R.C. 2941.401 governs the time within which the state must bring him to trial. R.C. 2941.401 states, in pertinent part, that: When a person has entered upon a term of imprisonment in a correctional institution of this state, and when during the continuance of the term of imprisonment there is pending in this state any untried indictment, information, or complaint against the prisoner, he shall be brought to trial within one hundred eighty days after he causes to be delivered to the prosecuting attorney and the appropriate court in which the matter is pending, written notice of the place of his imprisonment and a request for a final disposition to be made of the matter, except that for good cause shown in open court, with the prisoner or his counsel present, the court may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the warden or superintendent having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time served and the remaining time to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the adult parole authority relating to the prisoner. 5 The written notice and request for final disposition shall be given or sent by the prisoner to the warden or superintendent having custody of him, who shall promptly forward it with the certificate to the appropriate prosecuting attorney and court by registered or certified mail, return receipt requested. If the action is not brought to trial within the time provided, subject to continuance allowed pursuant to this section, no court any longer has jurisdiction thereof, the indictment, information, or complaint is void, and the court shall enter an order dismissing the action with prejudice. In the present case, the issue presented to this court for review is whether appellant complied with the mandates of R.C. 2941.401, therefore causing the trial court to lose jurisdiction once it has failed to bring appellant to trial within one hundred eighty days after receiving notice from appellant of his imprisonment and requesting that there be a final disposition of the case. This court, in State v. Rodano (April 14, 1988), Cuyahoga App. No. 53804, unreported, addressing the same issue, stated R.C. 2941.401 as interpreted by the courts, makes it clear that notice to `both the prosecuting attorney and the appropriate court' is required when requesting a speedy trial. Id. Thus, this court held in Rodano that the defendant's failure to fulfill both notice requirements of R.C. 2941.401 constituted waiver of his right to be brought to trial within one hundred eighty days. Id. We further stated in Rodano that if we were to find defendant's partial 6 compliance with the statute to be sufficient we would in effect be prejudicing the state's right to be notified that defendant wished to be brought to trial within one hundred eighty days. Rodano, supra. In the instant case, the record reveals that appellant did, in fact, provide written notice to the trial court stating his place of imprisonment and requesting that there be a final disposition made of the charges against him. Appellant's written notice was also accompanied by a certificate of the warden having custody of appellant. The record, however, does not reveal that appellant provided the state with notice of his imprisonment and request that there be a final disposition made of the charges pending against him. Pursuant to R.C. 2941.401 the state had a right to be notified that appellant wished to be brought to trial within one hundred eighty days. See Rodano,supra. Appellant's failure to notify the state in this instance of his demand for speedy trial constituted waiver. Accordingly, appellant's assignment of error is overruled. 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. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. It is ordered that a special mandate issue out of this court directing the Lyndhurst Municipal 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. __________________________________ PATRICIA BLACKMON, PRESIDING JUDGE __________________________________ TERRENCE O'DONNELL, JUDGE __________________________________ LEO M. SPELLACY, JUDGE 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 8 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 beg run upon the journalization of this court's announcement of decision by the .