This defendant was arrested on October 9, 1974, and charged with a felony. Following a preliminary hearing on October 16, 1974, defendant was bound to the grand jury, which returned an indictment on October 30, 1974. On December 13, 1974, there was filed with the clerk of courts of Belmont County an "Assignment No. 1, Spring Term 1975." This "Assignment" indicated that the case of The State of Ohio v. Albert W. Lacy would come on for trial on Thursday, January 9, 1975. This "Assignment" was *Page 218 entered in the court's journal on December 13, 1974. On December 18, 1974, the defendant filed a motion for a change of venue. A hearing date was not set on this motion. However, on January 7, 1975, the court entered on its journal: "Motion for Change of Venue overruled." On January 9, 1975, there was entered in a journal of the court an entry stating: "This day this cause came on for trial by regular assignment." However, on January 8, 1975, the defendant had filed a motion that he be discharged for the reason that he had not been brought to trial within the time required by R. C. 2945.71 and 2945.72. This motion was heard by the court on January 9, 1975, prior to the start of trial. At the hearing, the prosecution admitted that the trial date was the 92nd day from the date of arrest. The prosecution went on to say that the defendant was indicted October 30, 1974, but that the court's docket was already out for the months of November and December, and, therefore, January 9, 1975, was the very first day that defendant could be brought to trial. The court ruled that, as a result of the motion for a change of venue, filed on December 18, 1974, there had been a delay in bringing the case to trial, and that, pursuant to the pertinent statutes, this was a delay caused by the actions of the defendant. The motion to discharge was overruled.
The reiteration of the preceding facts gleaned from the official file in this case does not support the finding of the court. Prior to the filing of the motion for the change of venue, the state had set this case for trial for January 9, 1975, ninety-two days after the arrest of the defendant. As is noted from journal entries in the file, the case came on for trial upon its assigned date. There is nothing in the official records of the court which indicate that any action of the defendant caused a delay in bringing this case on for trial.
"Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused * * *." R. C. Section 2945.72.
As has been said, there is no recorded period of delay necessitated by reason of defendant's motion. It makes no *Page 219 one happy to see an obviously guilty felon go free because of an error in procedural calculation. However, the Ohio Supreme Court has attached serious significance to R. C. 2945.71 and 2945.72. That court has defined these statutes as being:
"* * * a protection to the rights of an individual which deeply concerned the authors of our federal and state Constitutions * * *." State v. Gray, 1 Ohio St.2d 21, 23.
This "concern" should carry over and be borne by everyone in procedural processing of criminal cases. In the same case, the Supreme Court stated in the first paragraph of the syllabus:
"Sections 2945.71 to 2945.73, inclusive, Revised Code, which prescribed the period of time a person may be detained in jail or held by recognizance without trial after an indictment or information has been returned, are valid legislative enactments, the provisions of which are mandatory and must be strictlycomplied with by the state." (Emphasis added.)
This language is quite clear and leaves little room for excuses. The state cites Sup. R. 8(B):
"All criminal cases shall be tried within six months of the date of arraignment on an indictment or information."
I am of the opinion that this rule has no application to this case. This rule is primarily aimed at the over all disposition of case loads. It is unconditional and makes no allowance for any type of delay. The effective starting time of this rule is the "date of arraignment on an indictment or information." Very possibly, an accused could be in incarceration well beyond the mandate of R. C. 2945.71 and 2945.72 at the time of arraignment. This fact, alone, obviates my reasoning that this Supreme Court rule has no application, specifically, to this case. A further point to be considered is the fact that Sup. R. 8 (B) has no condition specifying that failure of compliance justifies the discharge of an accused.
I find error on the part of the trial court in overruling defendant's motion for discharge. The judgment should be reversed and defendant ordered discharged. *Page 220