State v. Morton , 147 Ohio App. 3d 43 ( 2002 )

While I concur with the majority, I differ as to the reasons for affirming the trial court on the first assignment of error. R.C. 2945.72 states in pertinent part:

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:

* * *

(B) Any period during which the accused is mentally incompetent to stand trial or during which his mental competence to stand trial is being determined, or any period during which the accused is physically incapable of standing trial * * *.

(H) The period of any continuance granted on the accused's own motion, and the period of an reasonable continuance granted other than upon the accused's own motion * * *.

Defendant argues that the time is not tolled until the court's order for psychiatric examination is filed. He does not dispute that his attorney made the oral motion for the examination on January 2, 2001, which was within the time limits for speedy trial. Rather, he argues that the order was not actually filed by the clerk's office until January 8, and therefore could not begin to toll the statute of limitations until January 8, four days after the speedy trial time had elapsed.

Defendant misconstrues the courts' interpretation of the statute. It is true that the courts interpret the speedy trial statute strictly against the state and require continuances to be filed by the court within the statutory time limit. "[W]hen sua sponte granting a continuance under R.C. 2945.72(H), the trial court must enter the order of continuance and the reasons therefor by journal entry prior to the expiration of the time limits prescribed in R.C. 2945.71 for bringing a defendant to trial."State v. Mincy (1982), 2 Ohio St. 3d 6, 9.

In the case at bar, however, the time was not tolled by a motion for continuance under section (H) of the statute: it was tolled by defendant's motion for psychiatric evaluation to determine competency. "The express language of R.C. 2945.72(B) is broadly worded to include any period in which the accused's mental competency is being determined."State v. Palmer (1998), 84 Ohio St. 3d 103, 106. Therefore,

[w]hen a defendant places the trial court on notice that he is insane and not competent to stand trial, the court is required to take the necessary means to ascertain if he is competent to stand trial. No further action can be taken to bring a defendant to trial until competency is determined. Therefore, once the trial court is placed on such notice, the speedy trial time is tolled. (Emphasis added.)

State v. Wheatcraft (Oct. 6, 1989), Vinton App. No. 452, unreported, 1989 Ohio App. LEXIS 3833, at *7-8, citing State v. Spratz (1979),58 Ohio St. 2d 61, emphasis added.

In State v. Malone (Nov. 1, 1984), Montgomery App. No. 8864, unreported, 1984 Ohio App. LEXIS 11720, at *2, the court began tolling the speedy trial time as soon as the defendant's attorney orally requested the psychiatric examination. Similarly, in the case at bar, the court's record clearly reflects that the defense attorney's motion was orally made and orally granted at a pretrial held on January 2, 2001, the day trial was scheduled to begin. The computer entry reflecting this motion indicates that the order was entered into the record and the psychiatric clinic received the referral at 14:33 on January 3. Despite the delay of the clerk's office in time-stamping the entry for journalization, the record clearly reflects that the court was put on notice of defendant's need to establish competency under R.C. 2945.72(B) on January 2 and conveyed the order to the psychiatric clinic on January 3.

This case is distinguishable from Mincy in that the speedy trial time was not tolled by a motion for continuance, but rather by a motion for competency. Once the court was on notice that defendant's competency was in question, it was required to toll the speedy trial time because it was not permitted to proceed until the competency issue was resolved.

Because defendant's oral motion for psychiatric exam immediately divested the court of authority to continue with trial until the issue was determined, the speedy trial time immediately was tolled on January 2, 2001 and did not begin to run again until the court vacated the referral.