Summary
holding that when a defendant is being held on a probation violation holder in addition to other pending criminal charges, the triple-count provision is inapplicable
Summary of this case from State v. JonesOpinion
No. 78-211
Decided December 6, 1978.
Criminal law — Right to speedy trial — Triple-count provision — R.C. 2945.79(D) not applicable, when — Accused held on probation violation holder.
APPEAL from the Court of Appeals for Summit County.
This is an appeal by the state of Ohio (appellant) from the judgment of the Court of Appeals which, pursuant to a finding that John J. Martin (appellee) was not afforded a speedy trial in accordance with R.C. 2945.71, vacated his conviction.
Appellee was arrested on April 21, 1977, for breaking and entering and grand theft. On the following day, April 22, counsel was appointed for appellee. At the time of his arrest, appellee was on probation resulting from a prior conviction in 1975. An authorized probation holder, based on appellee's alleged failure to comply with the conditions of probation, was placed on appellee on April 22, 1977.
A preliminary hearing was held and the appellee was subsequently indicted by the grand jury on both criminal counts. At the pre-trial, on June 24, 1977, appellee's attorney was permitted to withdraw and a new counsel was appointed. At that time, a trial date of August 8, 1977, also was set. Bail was posted for appellee on July 13, 1977. However, this was ineffective in releasing appellee because he was also being detained pursuant to the probation holder. The bail was accordingly returned.
The trial was continued until August 22, 1977. A motion to dismiss for lack of a speedy trial under R.C. 2945.71(C) and (D) was filed by appellee's attorney on August 25. The trial court, on August 29, overruled the motion for dismissal. A jury trial was commenced on that date. On August 30, the appellee withdrew his plea of "not guilty" and entered a plea of "no contest" to the charge of breaking and entering and attempted grand theft as contained in the amended indictment. The trial court found appellee guilty as charged in the amended indictment and sentenced him to a term of from two to five years for breaking and entering and to a term of six months for the attempted grand theft. The sentences were to be served concurrently.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. Stephan M. Gabalac, prosecuting attorney, and Mr. Marc R. Wolff, for appellant.
Blakemore, Rosen Norris Co., L.P.A., and Mr. Robert C. Meeker, for appellee.
The solitary issue presented is whether the failure to bring appellee to trial within 90 days was a denial of a speedy trial as defined in R.C. 2945.71(D), necessitating his discharge pursuant to R.C. 2945.73. R.C. 2945.71, in relevant part, provides:
"(C) A person against whom a charge of felony is pending:
"* * *
"(2) Shall be brought to trial within two hundred seventy days after his arrest.
"(D) For purposes of computing time under divisions * * * and (C) of this section, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days."
The Court of Appeals found that the appellee was entitled to a discharge, since he was not brought to trial within 90 days. Appellant, relying on State v. MacDonald (1976), 48 Ohio St.2d 66, contends that the judgment of the Court of Appeals was in error.
In State v. MacDonald, supra, the court, in the first two paragraphs of the syllabus, stated as follows:
"1. R.C. 2945.71(D) is applicable only to those defendants held in jail in lieu of bail solely on the pending charge.
"2. R.C. 2945.71(C) is the appropriate time limit for felony trials in cases in which the accused is not entitled to the triple-count provision of R.C. 2945.71(D)."
The Court of Appeals found State v. MacDonald, supra, to be distinguishable, on its facts, from the instant cause and thus not controlling. Appellee also asserts that this cause is distinguishable, premised upon a claim that this probation violation is totally dependent upon a determination of the criminal charges. Appellee suggests that a dismissal of, or an acquittal on, the criminal charges would mean that there is no conduct upon which the probation revocation could be based. We acknowledge a factual deviation from that presented in State v. MacDonald, supra. In that case the defendant was held on a federal conviction as well as the pending state criminal charges. In the instant cause, appellee was in jail on a probation violation and pending state criminal charges. However, we are not persuaded that this factual distinction affects the applicability of State v. MacDonald, supra, to the instant cause.
In State, ex rel. Gordon, v. Zangerle (1940), 136 Ohio St. 371, 376-7, this court commented on the nature of probation as follows:
"* * * Probation, however, merely grants grace to the guilty person with the evident purpose of helping him to reform; yet the probated offender is still under surveillance although at large. He is not a free man; he is subject to the restraints and conditions imposed by the court during the period of his temporary freedom. * * * Yet in soundness the probationary period may be compared to a sentence term, as each is in reality an expiation of the crime. * * *"
In the instant cause, appellee, as a probated offender, was subject to specific restraints and conditions because of a prior conviction. The probation violation holder was imposed upon appellee because he had apparently violated the terms of his probation. The adjudication of this probation violation was a separate cause with another judge and a different scope of inquiry. Revocation turned upon the finding that appellee had violated a condition of his probation. The violation of any condition of appellee's probation could have resulted in the issuance of the probation violation holder and his incarceration. The mere fact that appellee's activity was criminal and, therefore, also a violation of his probationary restrictions does not inextricably intertwine these two proceedings as claimed by the appellee. The failure to prosecute the appellee on these criminal charges would not bar the use of these offenses as the grounds for the revocation of his probation. Kennedy v. Maxwell (1964), 176 Ohio St. 215. Furthermore, although not presented in the instant cause, a majority of states which have addressed the issue have found that an acquittal in a criminal prosecution does not preclude revocation of parole or probation on the same charge. In re Coughlin (1976), 16 Cal.3d 52, 127 Cal.Rptr. 337, 545 P.2d 249; Brimhall v. Turner (1972), 28 Utah 2d 321, 502 P.2d 116; Standlee v. Smith (1974), 83 Wn.2d 405, 518 P.2d 721. See, also, Rubera v. Commonwealth (Mass., 1976), 355 N.E.2d 800, and Stone v. Shea (1973), 113 N.H. 174, 304 A.2d 647 (the courts respectively held therein that a conviction by an inferior court that is appealed to a higher court for a trial de novo may constitute the basis for the revocation of probation on an earlier conviction).
In State v. MacDonald, supra, this court held that R.C. 2945.71(D), the triple-count provision, was not applicable where the defendant had not been held solely on the pending charges and had not been held in lieu of bail solely on the pending charges. In the instant cause, appellee was not held solely on the pending criminal charges. He was also being held on the probation violation. Further, appellee was not held in lieu of bail on the pending criminal charges. Appellee did post bail on the criminal charges. This bail was, however, ineffectual because of the probation violation holder. Accordingly, we find that appellee was not entitled to the triple-count provision. Appellee, having been tried within the 270-day limitation imposed by R.C. 2945.71(C), the Court of Appeals erred in granting his discharge. State v. MacDonald, supra.
The judgment of the Court of Appeals is reversed.
Judgment reversed.
LEACH, C.J., HERBERT, CELEBREZZE, P. BROWN, SWEENEY and LOCHER, JJ., concur.
W. BROWN, J., concurs in the judgment only.