dissenting:
I respectfully dissent.
I cannot agree with the holding of the majority's opinion, that all pre-trial motions made by a defendant are chargeable to the defendant and toll the speedy trial time pursuant to R.C. 2945.72(E). Rather, I believe that no pre-trial motion made by the defendant shall toll the speedy trial statute unless the motion requires action by some person other than the trial judge.
Ordinary pre-trial motions to suppress or compel discovery, for example, often languish in the trial court for months, undecided. During that time, under the majority holding, the clock stops running and the speedy trial statute is tolled. Charging such a delay, to the defendant, destroys the legislative purpose of the speedy trial statute.
Before R.C. 2945.72 was enacted, prosecutors and courts could delay cases, and regardless of the constitutional question, it was found over and over in studies of criminal prosecutions that the quicker the prosecution, the greater the deterrent affect. The speedy trial guidelines were adopted as much for society's benefit as for the defendant's.
If we adopt a rule that the time taken from the filing of a motion to a decision on that motion is chargeable to the defendant, we will revert to the pre-R.C. 2945.72 standard. That statute puts a burden on the trial court to decide pre-trial motions promptly, but if the time taken by the court to decide is chargeable to the defendant, what incentive or sanction is there for the trial judge? What incentive is there for any prosecutor to ever respond to a request for discovery? If he responds, the clock continues. If he refuses discovery and the defendant must resort to a motion to compel, then there is actually a sanction against the prosecutor for complying with the discovery request. If a pretrial motion by the defendant causes the clock to stop, a judge can decide it right away and then start the clock again. Or he can delay deciding the motion and try to catch up on his other cases. What incentive, what sanction is there for a trial judge to get these motions decided?
The majority rule will directly result in a return to the situation we had before the legislature adopted R.C. 2945.72. I recognize that the trial judges are under enormous pressure to get the ever increasing volume of cases out, but the majority holding will not alleviate this problem. While allowing delay to be charged to the defendant may ease the pressure on the trial judges temporarily, the backlog of cases will continue to mount. If felony cases are being filed at a rate of 300 per year per judge, they must be disposed of at a rate of 300 per year per judge, and charging the time to the defendant will not alleviate the problem. This is a tough row to hoe for trial judges, but they can only do the best they can. A trial judge may not have as much time as he would like to devote to a pre-trial motion, but until steps are taken to reduce the case load per judge, delaying one case and charging the delay to the defendant is not going to solve the problem. Society's interests in a speedy trial will not be served.
Nor will the constitutionalright to a speedy trial be served. Such a delay denies a defendant his basic constitutional rights. In essence, a defendant is being forced to choose between his Fifth Amendment right to a speedy trial and any other constitutional rights such as the Fourth Amendment right to be free from unreasonable searches and seizures. This was hardly the legislature's intent when it created R.C. 2945.72(E).
A defendant should not be charged with the time that it takes the state or a court to respond to or decide any of his pre-trial motions. Clearly, Nero was and this denied him his right to a speedy trial pursuant to R.C.2945.71.
*178Thus, I dissent.