Opinion
No. 69-741
Decided October 21, 1970.
Criminal procedure — Arraignment — R.C. Chapter 2937 — Plea of "not guilty" to misdemeanor charge — R.C. Chapter 2838 applicable — Continuance for good cause shown — Granting continuance on behalf of prosecution — Not prejudicial to defendant, when.
1. Where, on arraignment, under R.C. Chapter 2937, the accused pleads not guilty to the commission of a misdemeanor, the court shall proceed to set the trial at a future time pursuant to R.C. Chapter 2938.
2. Where R.C. 2938.03 specifically authorizes a continuance for good cause shown, and the continuance granted does not prevent the defendant from having a fair trial, the trial court may, in its discretion, grant a continuance on behalf of the prosecution.
APPEAL from the Court of Appeals for Cuyahoga County.
This is an appeal from a judgment of the Court of Appeals for Cuyahoga County, reversing a judgment of the East Cleveland Municipal Court rendered in the trial of a misdemeanor case. The Court of Appeals held that the trial court erred, to the detriment of the substantial rights of the defendant, by granting a continuance of more than ten days without the consent of the defendant, contrary to the provisions of R.C. 2937.21. Upon the basis that the trial had commenced and jeopardy attached, the Court of Appeals reversed the judgment of the Municipal Court and discharged the defendant.
On March 1, 1968, the defendant was issued a citation to appear in the East Cleveland Municipal Court for the alleged violation of a traffic ordinance of East Cleveland, such violation being a misdemeanor. On March 6, 1968, a continuance was requested by the attorney for the defendant, which was granted to April 18, 1968. On April 18, 1968, a plea of not guilty was entered by the defendant and the case was continued for trial to April 25, 1968.
The record then shows that the case was called on April 25, 1968, and the defendant again entered a plea of not guilty. According to the court record, testimony was heard and the case continued to May 14, 1968. According to the narrative bill of exceptions, while the prosecutor was otherwise engaged, the court "asked a police officer what had happened, and after the police officer told him the nature of the case, swore in the police officer who answered several questions and the court observing that the police officer was reading from a report, then asked the officer if he had witnessed any of the things to which he was testifying, and when the police officer testified that he had not observed such things, court stated that he would have to wait until the prosecutor was ready to proceed with the trial." After learning from the prosecutor the significance of the case, the court stated that under the circumstances the case would be continued.
The case was continued to May 14, 1968, over the objection of defendant's counsel, but to a date satisfactory to the defendant and his counsel.
On May 14, 1968, the defendant's counsel filed a motion for acquittal and discharge, which was overruled by the trial court. The trial then continued and the defendant was found guilty of the charge. The defendant was fined $50 and costs.
Thereafter, the matter was appealed to the Court of Appeals which reversed the judgment of the Municipal Court, stating that the trial court prejudicially erred to the detriment of the substantial rights of the defendant by failing to follow R.C. 2937.21 in granting a continuance of more than ten days without the consent of the defendant, and, the trial having commenced and jeopardy attached, the defendant was discharged.
Mr. Henry B. Fischer, for appellant.
Messrs. Sieman, Sieman Sieman and Mr. Harold Sieman, for appellee.
The primary question raised by the appellant is the applicability, if any, of R.C. 2937.21 to the granting of continuances in the trial of a misdemeanor in a Municipal Court, a court of record, after a plea of not guilty has been entered and the case has been set for hearing, and whether, under such circumstances, the municipality or state is limited to a flat ten-day continuance.
Clearly, R.C. 2937.21 is not applicable to the case at bar. R.C. 2937.08 provides that R.C. Chapter 2938 is applicable where, on arraignment under R.C. Chapter 2937, the accused pleads not guilty to the commission of a misdemeanor. The pertinent part of R.C. 2937.08 is as follows:
"Upon a plea of not guilty or a plea of once in jeopardy, if the charge be a misdemeanor in a court of record, the court shall proceed to set the matter for trial at a future time, pursuant to Chapter 2938."
The applicability of R.C. Chapter 2938 in this situation is then emphasized in R.C. 2938.02, the significant parts of which read:
"The provisions of Chapter 2938 of the Revised Code shall apply to trial on the merits of any misdemeanor * * * which may be instituted in and retained for trial on the merits in any court or before any magistrate inferior to the Court of Common Pleas * * *."
R.C. 2938.03 requires the setting of cases for trial at a date not later than 30 days after the plea of not guilty is received and also authorizes the granting of continuances for good cause shown. Where, as in this case, a statute specifically authorizes a continuance for good cause shown, and the continuance granted does not prevent the defendant from having a fair trial, the trial court may in its discretion grant a continuance in behalf of the prosecution.
The Court of Appeals, in its journal entry, said:
"[The] trial court prejudicially erred to detriment of substantial rights of defendant by failing to follow Section 2937.21, R.C., in granting a continuance of more than ten days without the consent of the defendant. The trial having commenced and jeopardy attached, judgment is reversed and defendant is discharged. Exceptions."
Since we have determined that R.C. 2937.21 is not applicable, and that R.C. Chapter 2938, generally, and R.C. 2938.03, specifically, are controlling, the judgment of the Court of Appeals is reversed and the judgment of conviction entered by the Municipal Court is affirmed.
Judgment reversed.
O'NEILL, C.J., HERBERT, DUNCAN and LEACH, JJ., concur.
LEACH, J., participated in the hearing of this case sitting for MATTHIAS, J.
concurs in the first paragraph of the syllabus and in the judgment.
STERN, J., not participating.
HOFSTETTER, J., of the Eleventh Appellate District, sitting for CORRIGAN, J.