State v. Dumas , 68 Ohio App. 3d 174 ( 1990 )

Because the majority opinion is in conflict with numerous pronouncements of the Ohio Supreme Court by which we are bound, I must respectfully dissent.

It is undisputed that the original trial date of July 13, 1988 was set for a time after the expiration of the time specified by R.C. 2945.71.

Defendant was arrested on March 19, 1988 and remained incarcerated until trial. Some one hundred sixteen days elapsed between the time of the arrest and the date originally set for trial which, under the three-for-one rule, would equal three hundred forty-eight days. Even if eleven days are deducted from the three-for-one computation because of confinement on other charges, a total of three hundred twenty-six chargeable days elapsed before July 13, 1988.

The trial was not commenced on that date, but instead, was continued upon motion of the prosecutor because of the unexplained unavailability of a witness. Defense counsel signed the continuance entry which was on a preprinted form including the words "[d]efendant waives the right to a speedy trial for the period of this continuance."

Such waiver, however, did not purport to waive any right to a speedy trial which was violated prior to the period of the continuance. Rather, the effect of the continuance entry was to leave the speedy-trial question in the same stance as it was on July 13, 1988. There is no indication of any retroactive effect intended to be given to the continuance entry as the majority opinion in effect holds it should be given for an unexplained reason.

The majority opinion is in conflict with State v. Singer (1977), 50 Ohio St. 2d 103, 4 O.O.3d 237, 362 N.E.2d 1216, which effectively "overruled" the decision of this court in State v.Westbrook (1975), 47 Ohio App. 2d 211, 1 O.O.3d 284,353 N.E.2d 637, which was predicated upon reasoning similar to that in the majority opinion which is also in conflict with State v. Pudlock (1975), 44 Ohio St. 2d 104, 73 O.O.2d 357, 338 N.E.2d 524;State v. Tope (1978), 53 Ohio St. 2d 250, 7 O.O.3d 408,374 N.E.2d 152; State v. McRae (1978), 55 Ohio St. 2d 149, 9 O.O.3d 118, 378 N.E.2d 476; and State v. Cutcher (1978), 56 Ohio St. 2d 383, 10 O.O.3d 502, 384 N.E.2d 275, as well as numerous decision of other courts of appeals and of this court. There is no provision for implied retroactive waiver of statutory speedy-trial rights, waiver being effected only by express action of defendant or his counsel or by failure to raise the issue prior to the commencement of trial. Here, the motion to dismiss was timely filed prior to trial.

Accordingly, the assignment of error should be sustained.