COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72926 CITY OF UNIVERSITY HEIGHTS : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION CHARLES R. CRABLE : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 25, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Shaker Heights Municipal Court, No. 97-TRC-2165. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: William T. Doyle, Esq. 2000 Standard Building 1370 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Charles R. Crable, pro se P.O. Box 22127 Beachwood, OH 44122 -2- TIMOTHY E. McMONAGLE, J.: Defendant-appellant Charles R. Crable appeals his conviction in Shaker Heights Municipal Court for driving under the influence of alcohol, failure to drive in marked lanes and driving over the curb in violation of University Heights Codified Ordinances 333.01(a)(1), 331.08 and 331.37 respectively. Appellant contends that the trial court erred in failing to hold a hearing on his motion to suppress evidence illegally obtained during the traffic stop. We find no error and affirm. The record reflects that on April 5, 1997, at approximately 9:27 p.m., appellant was stopped by a patrolman from the City of University Heights after he was observed driving in a weaving manner. Appellant refused to take a breathalyzer test. He was subsequently arrested and charged with violation of University Heights Codified Ordinance 333.01(a)(1), Driving Under the Influence of Alcohol; University Heights Codified Ordinance 331.08, Driving in Marked Lanes; and University Heights Codified Ordinance 331.37, Driving Upon Sidewalk, Street Lawns or Curbs. On April 8, 1997, appellant appeared in Shaker Heights Municipal Court without counsel and entered a plea of not guilty to all charges. Trial was set for April 22, 1997. On April 15, 1997, appellant, pro se, filed a discovery request which the prosecutor responded to on April 21, 1997. Appellant did not file a motion to suppress prior to trial. On April 22, 1997, after a bench trial, the court found appellant guilty of all charges. The court suspended appellant's -3- license for one year and sentenced him to a $600 fine and a jail term of thirty days on the DUI conviction and to a $25 fine each on the improper lane usage and driving over the curb charges. The $25 fines and all of the jail time were suspended on condition that appellant had no similar violations during his three-year probation and that he attend a weekend alcohol education program. On April 29, 1997, appellant filed a motion for a new trial, arguing that on April 22, 1997, the trial court had improperly denied his request for a continuance to obtain counsel and had commenced trial despite his objection. On May 8, 1997, the trial court granted appellant's motion, vacated his conviction and reset trial for June 10, 1997. On June 3, 1997, appellant, pro se, filed a motion to suppress the evidence obtained during his traffic stop and a request for a hearing on his motion. On June 9, 1997, the trial court denied appellant's motion without a hearing. On June 10, 1997, appellant appeared with counsel for trial and requested a continuance. The court granted appellant's motion and continued trial until June 24, 1997. On June 18, 1997, appellant filed a request for a statement of facts in support of denial of his motion to suppress. On June 23, 1997, the trial court journalized the following entry: In re: defendant's (sic) for statement of facts in support of denial: defendant was arraigned on 4-8-97 at which time he pled `not guilty'; defendant was tried and convicted 4-22-97; defendant's conviction was vacated 5- 8-97 and trial set for 6-10-97 (now reset for 6-24-97); motion to suppress was filed 6-3-97. -4- Per R[.]C[.] 2945.82, as a new trial has been granted, the `accused shall stand for trial upon the indictment or information as though there had been no previous trial thereof.' Crim.R. 12(C), Tr. Rule 11(C) state all pretrial motions shall be made within 35 days of the arraignment date of 4-8-97 (or 7 days before trial, whichever is earlier). The last day to file pretrial motions was 5-13-97. Defendant's pretrial motion to suppress filed 21 days after the cutoff date of 5-13-97 is, therefore[,] out of rule and denied on 6-9-97 for being untimely filed. After a bench trial on June 24, 1997, the trial court again found appellant guilty of all charges and sentenced him as before. Execution of the sentence was stayed pending appeal. Appellant timely appeals and presents the following assignment of error for our review: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT IN DENYING HIM A HEARING ON THE PROPERLY FILED MOTION TO SUPPRESS. Appellant contends that the trial court erred in denying his motion to suppress without holding a hearing. Specifically, appellant contends that the trial court should have held a hearing on his motion because it was timely filed and it set forth the legal and factual bases for the motion with sufficient particularity to require a hearing. We disagree. Both Crim.R. 12(C) and Traf.R. 11(C) provide that all pretrial motions *** shall be made with thirty-five days after arraignment or seven days before trial, whichever is earlier. Furthermore, R.C. 2945.82 provides that when a new trial is granted by the trial court ***, the accused shall stand for trial upon the indictment or information as though there had been no -5- previous trial thereof. This means that there is no requirement for a new indictment or information when a case is remanded for retrial. State v. Keenan (1998), 81 Ohio St.3d 133, 150. Accordingly, appellant's motion was not timely filed. Appellant was arraigned on April 8, 1997 and trial was set for April 22, 1997. Accordingly, appellant's motion to suppress was due on April 15, 1997, seven days before trial, the earlier of either thirty-five days after arraignment or seven days before trial. Even assuming, as the trial court appears to have done, that appellant's motion was not due until thirty-five days after his arraignment, appellant's motion was not timely filed. Appellant did not file his motion to suppress until June 3, 1997, after the trial court had vacated his earlier conviction and reset trial for June 10, 1997. Although the motion was filed seven days before the June 10, 1997 trial date, it was filed fifty-six days after appellant's arraignment. Accordingly, appellant's motion to suppress was not timely filed. This issue was addressed by the Fifth District Court of Appeals in State v. O'Hara (1980), 1 Ohio App.3d 50. In O'Hara, the defendant-appellant was convicted on May 2, 1980 of breaking and entering. On May 16, 1980, the trial court granted a new trial and set a second trial for May 21, 1980. On May 19, 1980, the defendant filed a motion to suppress certain identification evidence. The defendant had not demanded any discovery prior to the first trial and had not filed a motion to suppress. -6- On May 21, 1980, the trial court overruled the motion to suppress and proceeded to trial. The defendant was again convicted and sentenced. He appealed his conviction, arguing that the trial court had erred by not holding a hearing on his motion to suppress. In affirming the trial court, the Fifth District Court of Appeals stated: Crim.R. 12(C) provides that a motion to suppress shall be made within 35 days after arraignment or 7 days before trial, `whichever is earlier.' The defendant presents a unique argument, which is not based upon any legal foundation, that the granting of a new trial *** starts the `clock' running again and that the rule does not actually mean what it says. We disagree. The rules now place responsibility upon both counsel and mean what they say, and mean that the motion shall be filed upon whichever deadline occurs earlier. Id. at 51. Here, appellant's motion was not filed either seven days before trial or thirty-five days after his arraignment. Accordingly, the trial court did not err in denying his motion to suppress as untimely filed. Appellant does not argue and we do not suggest that the trial court, in the interest of justice, should have extended the time for filing pretrial motions. See Crim.R. 12(C). We note, however, that on April 15, 1997, the same day that his motion to suppress was due, appellant filed a discovery demand pursuant to Crim.R. 16 and Traf.R. 11. We conclude, therefore, that appellant was familiar with the Rules of Criminal Procedure and Ohio Traffic Rules and could have timely filed his motion to suppress. The judgment of the trial court is affirmed. -7- It is ordered that appellee recover of appellant 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 Shaker Heights 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. TIMOTHY E. McMONAGLE JUDGE DYKE, P.J. and KARPINSKI, J., CONCUR. 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 .