This is an appeal by the state, after leave granted, from a judgment of the Common Pleas Court dismissing a complicity to commit murder charge against the defendant, Calvin Lyons, for want of a speedy trial. We reverse.
November 9, 1977- Defendant secretly indicted for com- plicity to commit aggravated murder. November 23, 1977- Defendant arrested and incarcerated. Defendant arraigned and pled not guilty. Parties notified on February 15, 1978, trial date. *Page 229 February 3, 1978- Defendant moved to dismiss indict- ment for failure to state all the elements of the crime by including the name of the victim in the indictment. February 13, 1978- Motion heard, granted, defendant held for re-indictment pursuant to Crim. R. 12 (I). February 28, 1978- Defendant reindicted for complicity to commit murder. Trial date set for March 13 and par- ties notified. March 9, 1978- Defendant moved for dismissal for want of a speedy trial pursuant to R. C. 2945.73. March 13, 1978- Motion sustained and case is dismiss- ed.
We hold that where an indictment is dismissed on the motion of the defendant for a failure to state all of the elements of the crime, the elapsed time from the arrest to the dismissal may not be tacked onto a subsequent indictment to aggregate elapsed time for the application of R. C. 2945.73. The subsequent indictment is for all purposes a new and original charge and the time begins to run anew. The first indictment was, in effect, a nullity. See, cases cited in annotation, 30 A.L.R. 2d 462, 466.
State v. Justice (1976), 49 Ohio App.2d 46, is distinguishable since that case did not involve a motion by the defendant to dismiss an indictment, but rather was a dismissal for want of prosecution of a misdemeanor complaint. State v.Stephens (1977), 52 Ohio App.2d 361, is likewise distinguishable since the first indictment was dismissed for a want of prosecution after the court had denied the state's request for a continuance. Thus, both Justice and Stephens,supra, involved a delay caused by the state in being unprepared to prosecute on the trial date. *Page 230
We hold that the state's error in the preparation of an indictment which is later dismissed on a defendant's motion does not warrant a dismissal of the second indictment.
A good argument can be made that the lapse of time caused by the dismissal is actually a delay necessitated by reason of a motion instituted by the accused. See, R. C. 2945.72 (E). However, we prefer to bottom our holding in this case on the conclusion that the second indictment was, in fact, a new charge and the first indictment was a nullity.
Judgment reversed.
BELL and HUNSICKER, JJ., concur.
HUNSICKER, J., retired, was assigned to active duty under authority of Section 6(C), Article IV, Constitution. *Page 231