Village of Elmwood Place v. Denike

Per Curiam.

The issue in the instant cause is whether, it was permissible for the trial court, pursuant to E. C. 2945.72(H), to extend appellant’s date of trial 123 days beyond the time limit prescribed in E. C. 2945.71(B)(2).-

E. C. 2945.71(B) provides:

“A person against whom a charge of misdemeanor,other than a minor misdemeanor, is pending in a court of record, shall be brought to trial:
ÍÍ* # *
“(2) Within ninety days after his arrest or the service of summons, if the offense charged is a misdemeanor of the first or second degree * *

E. C. 2945.72 provides further, in part:

“The time within which an accused must be brought to trial * * * may be extended only by the following:
a* * #
“(H) * * * the period of any reasonable continuance granted other than upon the accused’s own motion.”

On three prior occasions, this court has construed the latter statutory provision in the situation, as present in this cause, where the trial court, sua sponte, within the prescribed time limitations established by E. C. 2945.71, had set a date for trial exceeding those limitations.

In State v. Lee (1976), 48 Ohio St. 2d 208, this court held that the sua sponte continuance by the trial court to extend an accused’s date of trial only two days beyond the 90-day time limitation because of a “crowded docket & judge’s conference” was reasonable.

In State v. McRae (1978), 55 Ohio St. 2d 149, this court held that it was reasonable for the trial court, sua sponte, to extend the accused’s date of trial 30 days beyond the time limitation of E. C. 2945.71 where the accused’s defense counsel was appointed only two weeks before the trial date was set and where counsel later found it necessary to request a continuance of the trial date beyond the original date set by the trial court.

However, in State v. Wentworth (1978), 54 Ohio St. 2d 171, this court held that an order continuing a case for trial *430to a date more than double the 90-day time limitation and stating that the continuance was necessary because of a crowded court docket was not a reasonable continuance under R. C. 2945.72(H) in the absence of any explication of such reason appearing in the record. This court noted that “* * * where the continuance is of such length that it is facially unreasonable and seriously open to question, and thus outside the rationale upon which Lee is based, the attendant facts and circumstances must be included in the l'ecord in sufficient detail so that the necessity and reasonableness of the continuance is demonstrable.” Wentworth, supra, at page 175.

In the instant cause, it is uncontroverted that the 123 day time extension was facially unreasonable. The question becomes, therefore, whether the record, sub judice, reflects sufficient facts and circumstances to support the trial court’s order.

There appears in the record an entry form indicating that the crowded conditions of the court’s docket would not permit an earlier setting of the trial date in appellant’s cause. However, a standardized entry form completed by the trial court indicating a crowded court docket is alone insufficient to support a sua sponte continuance order substantially extending the date of trial beyond the mandatory time limitations of R. C. 2945.71(B) (2). Wentworth, supra.

There further appears in the record the statement of the trial court made at the hearing on appellant’s motion to dismiss wherein that court, in explaining its decision to extend the trial date beyond the time limitations of R. C. 2945.72(B), stated:

“We had some idea that there were going to be twenty-two witnesses. That’s to indicate to the Assignment Commissioner that we were going to have a lengthy trial and it would be more difficult arriving at a suitable date.”

The above evidence of record is insufficient to demonstrate the necessity of a continuance for purposes of appellate review. The fact that a comparatively large number of witnesses was expected to be called to testify at *431trial does not indicate such an exceptional circumstance as to justify the postponement of the trial date approximately four months beyond the prescribed time period. As noted in Lee, supra, at page 209, “* * * to construe R. C. 2945.72 too broadly would render meaningless, and thwart the direction of, the speedy-trial statutes.”

In conclusion, because the sua sponte continuance order of the trial court in the cause at bar was not supported by sufficient detail contained in the record, the judgment of the Court of Appeals is reversed, and the appellant is ordered discharged pursuant to R. C. 2945.73(B).

Judgment reversed and appellant discharged.

Celebrezze, W. Brown, P. Brown, Sweeney and Locher, JJ., concur. Leach, C. J., and Herbert, J., dissent.