COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
                        COUNTY OF CUYAHOGA
                            NO. 80953
CITY OF CLEVELAND,            :
                              :
    Plaintiff-Appellant       :         JOURNAL ENTRY
                              :                and
    vs.                       :              OPINION
                              :
LEONARD JUDD,                 :
                              :
    Defendant-Appellee        :
DATE OF ANNOUNCEMENT
OF DECISION                   :    JANUARY 9, 2003
CHARACTER OF PROCEEDING:      :    Criminal appeal from
                              :    Cleveland Municipal Court
                              :    Case No. 1999 TRD 095084
JUDGMENT                      :    REVERSED AND REMANDED.
DATE OF JOURNALIZATION        :
APPEARANCES:
For plaintiff-appellant:      Brent C. Kirvel, Esq.
                              Assistant City Prosecutor
                              The Justice Center ­8th Floor
                              1200 Ontario Street
                              Cleveland, Ohio  44113
For defendant-appellee:       Scott Roger Hurley, Esq.
                              The Legal Aid Society
                              1223 West Sixth Street
                              Cleveland, Ohio  44113
                               -2-
MICHAEL J. CORRIGAN, P.J.:
     In November 1999, the Cleveland Police Department issued
defendant Leonard Judd a citation for failing to drive in marked
lanes of traffic and leaving the scene of an accident.   A summons
sent by certified mail to the address listed on Judd's driver's
license was twice returned as "unclaimed." When Judd did not
appear for the trial, the court issued a capias.    Over two years
later, the police stopped Judd for other traffic violations and
held him on the outstanding capias.  When Judd appeared for court,
he entered an oral motion to dismiss the capias for want of
prosecution on grounds that he had not received the summons.
Although Judd conceded that he lived at the address that the
summons was mailed to, the court held that the city 's failure to
follow-up on the address "violates [Judd's] right to present a
defense.  He lost time to present his own defense because of the
city's inaction." The city appeals.
     To the extent the court's statements upon granting the oral
motion to dismiss could be construed as a finding that the city
failed to commence the prosecution in a timely manner, we find that
position erroneous.  R.C. 2901.13(E) states:
     "A prosecution is commenced on the date an indictment is
returned or any information filed, or on the date a lawful arrest
without a warrant is made, or on the date a warrant, summons,
citation, or other process is issued, whichever occurs first.    A
                               -3-
prosecution is not commenced by the return of an indictment or the
filing of information unless reasonable diligence is exercised to
issue and execute process on the same.     A prosecution is not
commenced upon issuance of a warrant, summons, citation, or other
process, unless reasonable diligence is exercised to execute the
same."
    In State v. Fuller (July 30, 1998), Cuyahoga App. No. 72811,
we considered a factual scenario identical to that presented in
this case and held that the state showed reasonable diligence in
attempting  to  serve  a  summons  when  it  was  shown  that  the
prosecution sent the summons by certified mail and it was returned
unclaimed.  See, also, State v. Stevens (Dec. 22, 1994), Cuyahoga
App. No. 67400.
    In conformity with Crim.R. 4(D)(3), the city sent the summons
by certified mail.  It bears emphasizing that Judd admitted that
the address on the summons was the address where he lived.   Under
authority of Fuller and Stevens, we find the city exercised due
diligence in attempting to commence the prosecution.  The assigned
error is sustained.
    Reversed and remanded.
                                -4-
     This cause is reversed and remanded for proceedings consistent
with this opinion.
     It is, therefore, ordered that said appellant recover of said
appellee its 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.
                                         MICHAEL J. CORRIGAN
                                           PRESIDING JUDGE
JAMES J. SWEENEY, J., and
TERRENCE O'DONNELL, J., CONCUR.
N.B.  This entry is an announcement of the court's decision.   See
App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22.   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 announcement of decision by the
clerk per App.R. 22(E).    See, also, S.Ct.Prac.R. II, Section
2(A)(1).
 
.