Summary
holding mandamus will not lie where relator claims he was denied speedy trial, because he has adequate remedy at law by way of appeal
Summary of this case from State, ex Rel. Baker, v. HairOpinion
No. 84-950
Decided July 3, 1985.
Criminal law — Mandamus not proper vehicle to claim speedy trial violation.
APPEAL from the Court of Appeals for Cuyahoga County.
Appellant, Richard Dix, was arrested on December 14, 1983 and was subsequently indicted for aggravated murder. Appellant has been incarcerated since his arrest.
Appellant pled not guilty on January 17, 1984. Pretrials were held on February 17 and March 22, 1984. Defense counsel failed to appear at either pretrial. On February 23, 1984, the court ordered a special venire, pursuant to R.C. 2945.18, and set the case for trial on April 2, 1984.
On March 28, 1984, one hundred five days after appellant's incarceration, his counsel filed a motion to dismiss the indictment for lack of a speedy trial. After a hearing, the trial court overruled the motion to dismiss.
Appellant filed a complaint for a writ of mandamus in the court of appeals on April 5, 1984. He requested an order directing the trial court to dismiss his pending indictment for failure to provide a speedy trial. On April 26, 1984, the court of appeals dismissed appellant's complaint.
The cause is now before this court upon an appeal as a matter of right.
John N. Gardner and Andrew Lee, Jr., for appellant.
John T. Corrigan, prosecuting attorney, and John B. Gibbons, for appellee.
The sole issue presented by this appeal is whether a complaint for a writ of mandamus is the proper vehicle in which appellant's claimed speedy trial right violation should be addressed. It is axiomatic that a writ of mandamus will only be issued when the aggrieved party has no adequate remedy at law. State, ex rel. Racine, v. Dull (1975), 44 Ohio St.2d 72, 73 [73 O.O.2d 320]. Additionally, this court has held that extraordinary writs, such as mandamus, may not be employed before trial as a substitute for appeal. State, ex rel. Woodbury, v. Spitler (1973), 34 Ohio St.2d 134 [63 O.O.2d 229], syllabus.
In the instant case there are factors which may affect appellant's right to have a trial date set no later than two hundred seventy days after his arrest. First, appellant's attorney failed to show up for two pretrials and, second, the case was set for special venire pursuant to R.C. 2945.18. Thus, the appropriate and adequate remedy by which appellant's grievance regarding a speedy trial should be determined is an appeal after trial.
R.C. 2945.71(C)(2) mandates that a person charged with a felony shall be brought to trial within two hundred seventy days after his arrest. R.C. 2945.71(E) provides that each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days for the purpose of computing time under subdivision (C)(2).
Therefore, we find that appellant's complaint for a writ of mandamus was properly dismissed and we affirm the judgment of the court of appeals.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.