COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72465 CITY OF BEDFORD HEIGHTS : ACCELERATED DOCKET : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION PETER J. SOLKOWSKI, JR. : : PER CURIAM : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 30, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Bedford Municipal Court, No. 96TRC07481A. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: James L. Oakar, Esq. 700 West St. Clair Avenue Suite 210 Cleveland, OH 44113 For Defendant-Appellant: Michael I. Shapero, Esq. Signature Square II, Suite 220 25101 Chagrin Boulevard Beachwood, OH 44122 2 PER CURIAM: This cause came on to be heard upon the accelerated calender pursuant to App.R. 11.1 and Loc.R. 25, the record from the Bedford Municipal Court, and the briefs of the parties. Peter J. Solkowski, defendant-appellant, states as his sole assignment of error: THE TRIAL COURT ERRED WHEN IT OVERRULED DEFENDANT- APPELLANT'S MOTION TO DISMISS WHICH ASSERTED THAT DEFENDANT-APPELLANT'S STATUTORY RIGHT TO A SPEEDY TRIAL HAD BEEN VIOLATED. On October 27, 1996, defendant-appellant was arrested and charged with weaving in violation of Bedford Heights Municipal Ordinance 331.34(B) and for operating a motor vehicle under the influence of alcohol in violation of R.C. 4511.19. Defendant- appellant, whose residence is in Chicago, Illinois, was unable to appear at his arraignment which was scheduled for October 29, 1996. However, defendant-appellant's mother appeared on his behalf and requested a continuance so that her son could retain counsel. On November 6, 1996, counsel for defendant-appellant filed a letter with the court wherein he entered a plea of not guilty and requested a pretrial. The trial court scheduled the pretrial for December 23, 1996 and a jury trial for February 10, 1997. The trial was rescheduled for March 20, 1997. On January 30, 1997, defense counsel contacted the Bedford Municipal Clerk of Court and the prosecutor to discuss the fact that the newly scheduled trial date fell outside the speedy trial requirement set forth in R.C. 2945.71. The trial court subsequently re-scheduled the trial date for February 10, 1997. 3 On the day of the trial, defense counsel filed a motion to dismiss with the court claiming that defendant-appellant's right to a speedy trial had been violated. The prosecutor was granted ten (10) days in which to file an answer and a hearing on the motion was scheduled for April 1, 1997. The trial court subsequently denied defendant-appellant's motion. Defendant-appellant withdrew his not guilty plea and pled no contest to the charges. Defendant-appellant was found guilty of weaving and driving under the influence on April 8, 1997. As this was defendant-appellant's second conviction for driving under the influence within six years, he was sentenced to ninety (90) days incarceration (60 days were suspended) and a $750 fine. A stay of execution was granted pending this appeal. The time within which a trial must be held is governed by R.C. 2945.71 which states 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 of 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. It is well established that the Ohio speedy trial statute constitutes a rational effort to enforce the constitutional right to a public speedy trial of an accused charged with the commission of a felony or misdemeanor and shall be strictly enforced by the courts of this state. State v. Pachay (1980), 64 Ohio St.2d 218; State v. Singe (1977), 50 Ohio St.2d 103. A failure of the state 4 to comply with the mandates of R.C. 2945.71 requires a discharge of the defendant. R.C. 2945.73. Once the statutory limit has expired, the defendant has established a prima facie case for dismissal. State v. Howard (1992), 79 Ohio App.3d. At that point the burden shifts to the state to demonstrate that sufficient time was tolled pursuant to R.C. 2945.72 to leave fewer than ninety (90) days chargeable to the state. State v. Geraldo (1983), 13 Ohio App.3d 27. In this case, defendant-appellant was charged with first degree misdemeanors. Therefore, pursuant to R.C. 2945.71(B)(2), defendant-appellant's trial must have been brought within ninety (90) days of his arrest. Again, defendant-appellant was arrested on October 27, 1996. The trial began on February 10, 1997. Since the period of time from the date of arrest to the date of trial is 103 days, the burden shifts to the state to demonstrate at least thirteen (13) days were tolled pursuant to R.C. 2945.72. The state argues that pursuant to State v. Gowe (1983), 13 Ohio App.3d 358, the time lapse between defendant-appellant's request for a pretrial and the actual pretrial held on December 23, 1996, is chargeable to defendant-appellant. We agree. In that case, the court recognized that a defendant does not have a right to a pretrial pursuant to Crim.R. 7.1. Rather, it is a matter within the sound discretion of the court. Here the trial court only scheduled a pretrial due to defendant-appellant's request on November 6, 1996. Thus, the delay from November 6, 1996 to December 23, 1996 (date of the pretrial) 5 was the result of defendant-appellant's actions and will be charged against defendant-appellant. See Village of Lindale v. Anthony (April 8, 1993), Cuyahoga App. No. 62326, unreported. Accordingly, a period of forty-seven (47) days is not chargeable to the speedy trial limits. Subtracting the tolled period from a total of 103 days leaves fifty-six (56) days chargeable against the speedy trial time limit. The trial court did not err in denying defendant-appellant's motion to dismiss. Judgment affirmed. 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 Bedford 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. JAMES D. SWEENEY, PRESIDING JUDGE DAVID T. MATIA, JUDGE 6 JAMES M. PORTER, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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(E) 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 .