Summary
In Drowell, the accused was in a state facility with a warden, yet filed a motion pro se in the appropriate county clerk's office, with service to the prosecutor's office, requesting disposition of any outstanding warrants and/or indictments pursuant to R.C. 2941.401.
Summary of this case from State v. GillOpinion
Nos. 89 CR 036904, 89 CR 037845.
Decided April 25, 1991.
Gregory A. White, Prosecuting Attorney, and Michael Scherach, for plaintiff. Michael D. Tully, for defendant.
On May 14, 1990, the defendant, Nathaniel Jack Drowell, a.k.a. Gregory Steele, in a then pro se capacity, filed a motion for final disposition of any untried indictments, pursuant to R.C. 2941.401.
Although the defendant filed his motion in case No. 89CR-036904, the court finds that the motion applies to both of the pending criminal indictments against the defendant.
On February 4, 1991, the state of Ohio filed a motion to strike or otherwise dismiss the defendant's motion, on the basis the defendant did not strictly comply with the requirements set out in R.C. 2941.401.
The court had scheduled a hearing on these matters for March 29, 1991, at which time the court was to receive argument and any evidence relevant and necessary for a determination of the issues. However, that hearing was canceled and by journal entry the court directed the parties to submit any proposed findings of fact and conclusions of law.
The defendant, who has been represented by Michael D. Tully, his appointed counsel, submitted proposed findings of fact and conclusions of law. The state of Ohio merely renewed its motion to strike the motion of the defendant.
This court has carefully considered the pleadings, the files and records in this case and the applicable law.
The state of Ohio has correctly cited the case of State v. Turner (1982), 4 Ohio App.3d 305, 4 OBR 556, 448 N.E.2d 516, where the Court of Appeals for Medina County held that before a defendant can avail himself of the speedy trial rights of R.C. 2941.401, he must first show that he has delivered to the appropriate court and the prosecuting attorney a written notice showing his place of imprisonment and include a request that there be a final disposition in the case.
Thereafter, the defendant must be brought to trial within one hundred and eighty days.
In these cases, wherein the defendant was indicted by the Lorain County Grand Jury, the court finds that without question the defendant, in compliance with R.C. 2941.401, delivered to this court and to the Lorain County Prosecutor, on May 14, 1990, a written notice demanding a speedy trial and indicating the defendant's place of imprisonment.
Absent a subsequent waiver of his right to a speedy disposition of the pending cases (no such waiver was made), the state had one hundred eighty days to bring the defendant to trial, and therefore, on or about November 10, 1990, the state of Ohio's right to bring the cases to trial would cease.
For reasons which are not known and not relevant, the state of Ohio failed to bring the defendant into court prior to December 28, 1990, at which time the defendant was arraigned.
The state did make some efforts to bring the defendant to court between May 14 and December 1990, but the state never requested an order for transporting the defendant to court from the Mansfield Reformatory or the Chillicothe Correctional Institute, the two facilities where the defendant has been incarcerated since May 14, 1990.
The state of Ohio now contends that the defendant is not entitled to dismissal upon his motion for disposition because the defendant failed to strictly comply with R.C. 2941.401. This court finds that position to be not well taken. The court relies on and approves the holding in State v. Ferguson (1987), 41 Ohio App.3d 306, 535 N.E.2d 708, and the cases cited therein.
This court lost jurisdiction of these two cases on or about November 10, 1990, when the indictments became utterly void.
The court adopts and approves in its entirety the findings of fact and conclusions of law submitted by the defendant, which follow here and are in addition to those findings and conclusions already stated, above.
Findings of Fact
This cause came on to be heard on the 24th day of April, 1991, upon the motions to dismiss by the defendant due to his contention that the state of Ohio failed to bring him to trial within one hundred eighty days after he made his request pursuant to R.C. 2941.401. The parties have had sufficient time to file briefs and supporting memorandum in support of their positions and the court believes that it has the necessary information before it to make a just determination of the issues raised by the parties.
The court further finds as follows:
1. On January 31, 1989 and on October 11, 1989, defendant, Nathaniel Jack Drowell, a.k.a. Gregory Steele, was indicted by the Lorain County Grand Jury for the instant offenses referred to in the respective cases;
2. On May 14, 1990, the defendant filed a motion with the Lorain County Court of Common Pleas, Clerk's Office, for final disposition of any outstanding warrants and/or indictments by speedy trial, pursuant to R.C. 2941.401.
3. Also on May 14, 1990, the defendant delivered a copy of said request, by certified mail, return receipt requested, to the Lorain County Prosecutor's Office.
4. The defendant's motion did not include the warden's certificate which is authorized by R.C. 2941.401; however, the motion did note both names used by the defendant, address and institutional location, and most notably, his Ohio penal system prison number.
5. Efforts to bring the defendant to the Lorain County Court of Common Pleas for his arraignment were unsuccessful until he was arraigned in open court on the within charges on December 28, 1990.
6. There is nothing in the court's records to indicate that defendant waived the time requirement that he be brought to trial within one hundred eighty days after serving notice upon the court and the prosecuting attorney.
Conclusions of Law
1. Under R.C. 2941.401, a person who is incarcerated in this state has the right to a speedy trial with regard to any untried indictment, information or complaint.
2. R.C. 2901.04(B) provides that the rules of criminal procedure "* * * shall be construed so as to effect the * * * speedy * * * administration of justice."
3. Defendant substantially complied with the notice requirements of R.C. 2941.401 by filing a copy of his motion with the clerk on May 14, 1990, and also by serving a copy of the same on the Lorain County Prosecutor's Office by certified mail, return receipt requested, on the same date.
4. The failure of the warden of the institution having custody of defendant to forward the appropriate certificate when defendant filed the subject request is not grounds to deny said motion (an official's failure to send the certificate of inmate status should not vitiate an inmate's right to a speedy trial once requested, State v. Ferguson, 41 Ohio App.3d 306, 311, 535 N.E.2d 708, 713).
5. R.C. 2941.401 further provides in part:
"If the action is not brought to trial within the time provided, subject to a continuance allowed pursuant to this section, no court any longer has jurisdiction thereof, the indictment, information or complaint is void, and the court shall enter an order dismissing the action with prejudice."
Using the May 14, 1990 filing date as the day time began to run, the expiration of one hundred eighty days resulted on November 10, 1990 and this defendant was not brought to trial prior to this date.
Journal Entry
It is therefore ORDERED, ADJUDGED, and DECREED that the indictments in the within cases are void and this court is without jurisdiction in these cases. These cases are hereby dismissed, with prejudice.
The Lorain County Clerk of Courts shall send a certified copy of these findings of fact and conclusions of law and journal entry to the Lorain County Prosecutor, defendant, and defendant's counsel, Michael D. Tully.
So ordered.