COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73354 CITY OF BROOKLYN : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION WILLIAM L. BLAKE : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 8, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Parma Municipal Court, 97-TRD-11308(2). JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Greg Chizmar, Esq. Prosecutor, City of Brooklyn Brooklyn City Hall 7619 Memphis Avenue Brooklyn, OH 44l44 For Defendant-Appellant: William L. Blake, Esq. 840 Rockefeller Building Cleveland, OH 44113-1306 -2- TIMOTHY E. McMONAGLE, J.: Defendant-appellant William Blake ( appellant ) appeals his conviction for violation of Brooklyn Municipal Ordinances 333.03 (speeding) and 337.27 (failure to use seat belt) following a bench trial in Parma Municipal Court. Appellant asserts that he was denied his right to a speedy trial as provided in R.C. 2945.71(A). For the reasons stated below, we reverse. The facts giving rise to this appeal are as follows. On June 5, 1997, appellant was cited by Patrolman Richard Hoven of the City of Brooklyn Police Department for traveling fifty-one miles per hour in a thirty-five mile per hour zone and for his failure to wear a seat belt. Each charge constituting a misdemeanor of the fourth degree. The summons as issued to appellant indicated a court date set on June 19, 1997 at 8:00 a.m. in Brooklyn Mayor's Court. The record fails to disclose any further action on the matter until July 11, 1997, when appellant entered his plea of not guilty. On July 24, 1997, the Brooklyn Mayor's Court certified appellant's case to Parma Municipal Court. Waiver of time for trial was not executed by appellant. The Parma Municipal Court set the case to be heard on August 25, 1997 but because appellant failed to timely appear on that day, the court sua sponte continued appellant's trial to September 18, 1997. On September 18, 1997, appellant appeared for trial and moved the court for dismissal pursuant to R.C. 2945.71(A). After hearing, the trial court denied appellant's motion reasoning that the trial court complied with R.C. 2945.71(B) which requires a defendant to be brought to trial within forty-five -3- days for charges which constitute fourth degree misdemeanors. Trial was held on the charges against appellant; he was found guilty on each count and fined. Appellant timely appeals his convictions and advances two assignments of error for our review. I. THE COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTION FOR DISMISSAL DUE TO FAILURE TO AFFORD A SPEEDY TRIAL AS PROVIDED IN R.C. 2945.71(A). II. THE COURT ERRED IN ITS ENTRY OF JUDGMENT AGAINST DEFENDANT BASED ON OBVIOUSLY PERJURED TESTIMONY. Appellant in his first assigned error contends that his speedy trial rights were violated and the trial court erred in failing to dismiss the charges against him. Specifically, appellant contends that the Brooklyn Mayor's Court was subject to the 30-day period as set out in R.C. 2945.71(A) in which to bring him to trial or certify his case to the Parma Municipal Court. Alternatively, appellant argues that he neither consented nor requested a continuance of his August 25th trial date, and his trial of September 18th was outside the statutory forty-five day limit for fourth degree misdemeanors as provided in the R.C. 2945.71(B) statute. In Ohio, the right to a speedy trial has been codified in R.C. 2945.71-73. The Supreme Court has repeatedly announced that trial courts are to strictly enforce these statutes. State v. Pachay (1980), 64 Ohio St.2d 218, 221. The standard review in a speedy trial case is to simply count the days as directed in R.C. 2945.71 et seq. Oregon v. Kohne (1997), 117 Ohio App. 3d 179; State v. -4- DePue (1994), 96 Ohio App.3d 513, 516; State v. Gobel (Oct. 31, 1996), Cuyahoga App. No. 69607, unreported. R.C. 2945.71 provides in pertinent part: (A) A person against whom a charge is pending in a court not of record, or against whom a charge of minor misdemeanor is pending in a court of record, shall be brought to trial within thirty days after his arrest or the service of summons. (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: (1) Within forty-five days after his arrest or the service of summons if the offense charged is a misdemeanor of the third or fourth degree, ***. Circumstances justifying extension of the statutory period are contained in R.C. 2945.72. Further, R.C. 2945.73(B) provides: [u]pon motion made at or prior to the commencement of trial, a person charged with an offense shall be discharged if he is not brought to trial within the time required by sections 2945.71 and 2945.72 of the Revised Code. An accused presents a prima facie case for discharge based upon a violation of speedy trial limitations by alleging in a motion to dismiss that he was not brought to trial within the time limits of R.C. 2945.71. North Olmsted v. Cipiti (1996), 114 Ohio App.3d 549; State v. Butcher (1986), 27 Ohio St.3d 28, 30-31. The burden then shifts to the state to show that the limitation of R.C. 2945.71 has not been exceeded by demonstrating that the time limit was extended by R.C. 2945.72. Butcher, id. at 31. Extensions of time are strictly construed in favor of the accused. State v. -5- Singer (1977), 50 Ohio St.2d 103; Cleveland v. Jones (1996), 110 Ohio App.3d 791, 794. A continuance will be charged against the state, unless the court does all of the following: 1) record the continuance through its journal entry prior to the expiration of the speedy trial requirements, 2) identify the party to be charged with the continuance, and 3) briefly indicate the reasons requiring the continuance. State v. Collura (1991), 72 Ohio App.3d 364, 368; State v. Geraldo (1983), 13 Ohio App.3d 27, paragraph four of the syllabus. In the case of a sua sponte continuance, the Supreme Court in State v. Lee (1976), 48 Ohio St.2d 208, 209 stated: The record of the trial court must in some manner affirmatively demonstrate that a sua spontecontinuance by the court was reasonable in light of its necessity or purpose. Mere entries by the trial court will ordinarily not suffice, except when the reasonableness of the continuance cannot be seriously questioned. Although this burden is contrary to the presumption of regularity generally accorded to trial proceedings, it appears necessary to carry out the purpose of the speedy trial statutes. Finally, we recognize that a Mayor's Court is a court not of record. Portage v. Belcher (1996), 117 Ohio App.3d 90. Transfer from a Mayor's Court to the Municipal Court constitutes a removal pursuant to R.C. 2945.72(F) which tolls the speedy trial statute. Brecksville v. Cook (1996), 75 Ohio St.3d 53. However, where the removal takes place after the statutorily permitted thirty days has passed, the removal does not breathe new life into the case. See City of Newark v. O'Brien (Feb. 1, 1993), Licking App. No. 92-CA- 77, unreported. With these standards in mind we review the matter before us. -6- In this case appellant was cited on June 5, 1997. By statute the Mayor's Court, as a court not of record, has only thirty days within which to bring him to trial (or to certify the case to the proper court). See Brecksville, supra. Appellant was neither tried within the thirty-day statutory requirement nor was his case transferred to the Municipal Court within that time. The record does not reflect any continuance or other disposition. Moreover, appellant did not execute a waiver of his speedy trial time. On July 11, appellant's case was transferred to the Parma Municipal Court, outside the thirty-day statutory requirement. Therefore, although we recognize that upon transfer to the Parma Municipal Court the state would have forty-five days to bring appellant to trial for a fourth degree misdemeanor pursuant to the statute, we find the trial court erred in finding that the statute afforded the City of Brooklyn Mayor's Court forty-five days within which to bring appellant to trial or to transfer the matter. Since we are required to strictly enforce the legislative mandate evident in the statute, and we find the record devoid of explanation of continuance which may have tolled the time within which the court was required to bring appellant to trial pursuant to R.C. 2945.72, then, R.C. 2945.73 requires discharge. Appellant was not brought to trial within the required time limits. The trial court erred in denying his motion for dismissal. Accordingly, appellant's first assignment of error is well taken, the judgment of the trial court is reversed and appellant is hereby discharged. -7- In accordance with App.R. 12, appellant's second assignment of error is rendered moot by our determination of appellant's first assigned error and we are not required to decide or rule upon it. -8- This cause is reversed and appellant is hereby discharged. It is, therefore, considered that said appellant recover of said appellee 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. TIMOTHY E. McMONAGLE JUDGE BLACKMON, A.J. and PORTER, 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 .