dissenting.
{¶ 24} I respectfully dissent and would affirm the judgment of the court of appeals. The majority creates an artificial distinction between a waiver of speedy-trial rights and the tolling of time that occurs by operation of R.C. 2945.72. In both situations, the speedy-trial clock stops running, to the benefit of the state. I would hold that the reasoning of State v. Adams (1989), 43 Ohio St.3d 67, 538 N.E.2d 1025, applies to this case.
{¶ 25} The trial court calculated that 301 days had passed from the date the speedy-trial time of 270 days began in Blackburn’s case. According to the court of appeals, six days elapsed before the first case was dismissed by the state. State v. Blackburn, 11th Dist. No. 2006-A-0029, 2007-Ohio-1071, 2007 WL 725821, at ¶ 10. From the service of the second indictment of Blackburn (February 24, 2005) to its dismissal (December 5, 2005), 284 days elapsed. Id. at ¶ 11. From Blackburn’s arrest on the third indictment (February 16, 2006) until his motion to dismiss was filed (March 14, 2006), 25 days elapsed, 14 of which are not counted, because of Blackburn’s request for discovery and a bill of particulars, R.C. 2945.72(E), leaving 11 elapsed days for speedy-trial purposes. Id. at ¶ 12.
{¶ 26} It is undisputed that the date from which speedy-trial calculations begin to occur is December 17, 2004, the date Blackburn was arrested on his initial case, and that the three cases, although containing different charges, stemmed *169from the same set of circumstances. The state focuses on 139 days during the pendency of the second indictment, which the state attributes to a motion for discovery (19 days) pursuant to R.C. 2945.72(E) and a motion for continuance (120 days) pursuant to R.C. 2945.72(H). The state argues that reliance on Adams is improper because the delays were not the result of a waiver, but were the result of statutory tolling.
{¶ 27} According to the majority, the two concepts are distinct. With respect to waiver, because a defendant’s waiver must be made knowingly and intelligently to be effective, Adams precluded the application of a waiver executed on an original charge to new charges on the same facts. Adams, 43 Ohio St.3d 67, 538 N.E.2d 1025, syllabus. With respect to the tolling of speedy-trial time, the statute, R.C. 2945.72, “provides circumstances that extend or toll the time within which an accused must be brought to trial but do not involve an intentional relinquishment of the fundamental right.” Majority opinion, ¶ 17. Although it is accurate to say that waiver differs from tolling, this distinction misses the crucial point that both methods stop the count for speedy-trial purposes. For the situations under discussion in this case, I do not agree that “[ujnlike waiver, statutory tolling does not necessarily require an informed, tactical decision.” Majority opinion, ¶ 19.
{¶ 28} R.C. 2945.72 provides:
{¶ 29} “The time within which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may be extended only by the following:
{¶ 30} “ * * *
{¶ 31} “(E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused;
{¶ 32} “ * * *
{¶ 33} “(H) The period of any continuance granted on the accused’s own motion, and the period of any reasonable continuance granted other than upon the accused’s own motion.” (Emphasis added.)
{¶ 34} For both of these statutory reasons, it is the defendant’s own actions that cause the time to be tolled. As we observed in State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, ¶ 26, “It is the filing of the motion itself, the timing of which the defense can control, that provides the state with an extension. R.C. 2945.72(E) implicitly recognizes that when a motion is filed by a defendant, there is a ‘period of delay necessitated’' — at the very least, for a reasonable time until the motion is responded to and ruled upon.”
{¶ 35} Furthermore, in Adams, we reasoned that “a knowing and intelligent waiver cannot be made until all the facts are known by the accused, which *170includes knowing the exact nature of the crime he is charged with.” 43 Ohio St.3d at 70, 538 N.E.2d 1025. Knowing the exact nature of the crime will also affect which motions may be filed in a criminal case. For example, a defendant initially charged with misdemeanor assault against a live-in partner may conceivably file a motion in limine to prevent the admission on grounds of relevance of a prior misdemeanor conviction for domestic violence. If the charge is later changed to that of felony domestic violence, in which the state must prove a prior domestic-violence conviction, the motion would no longer be appropriate.
Thomas L. Sartini, Ashtabula County Prosecuting Attorney, and Shelley M. Pratt, Assistant Prosecuting Attorney, for appellant. William P. Bobulsky, for appellee.{¶ 36} Thus, the decisions to file motions in a particular case that will automatically extend the time during which a speedy trial must be held are just as much tactical decisions as the decision whether to execute a waiver in a particular case. In either event, the result should be the same. The speedy-trial clock does not reset for the new charge arising from the same set of facts, whether the time is extended by waiver or tolling.
{¶ 37} For these reasons, I would affirm the judgment of the court of appeals.
Pfeifer, J., concurs in the foregoing opinion.