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Ruling favors prosecutor's office



Published: Thu, August 31, 2006 @ 12:00 a.m.



The statute doesn't address an appeals court reversing a conviction.

By MICHELE C. HLADIK

VINDICATOR CORRESPONDENT

COLUMBUS -- The Ohio and U.S. Constitutions' reasonable time requirements outweigh Ohio's speedy trial statutes when dealing with the retrial of a criminal conviction, the Ohio Supreme Court says.

The high court also ruled the 149 days it took to schedule the retrial of an Austintown woman's drunken-driving case was "reasonable time."

"Ohio's speedy-trial statute specifies the time within which a person charged with a criminal offense shall be brought to trial following arrest or service of summons, but does not address the situation created when an appellate court vacates a conviction entered pursuant to a no-contest plea and remands the case for further proceedings," Justice Terrence O'Donnell wrote Wednesday in the high court's unanimous decision.

The Ohio Revised Code "does not apply to criminal convictions that have been overturned on appeal. The time limit for bringing a person charged with a crime to trial whose conviction has been overturned on appeal is governed by the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution."

Evolution of case

In the Austintown case, Theresa Hull was arrested and charged with DUI and with driving with prohibited blood-alcohol content in October 2001.

After a motion to suppress the results of her breath test was filed and denied by the trial court, Hull entered a plea of no contest to the prohibited blood-alcohol charge and was convicted.

She appealed the denial to suppress the breath test results, and the 7th District Court of Appeals vacated her conviction and remanded the case to the trial court for a new trial.

Hull was found guilty of DUI on the retrial and the decision was affirmed by the appellate court.

During oral arguments before the Ohio Supreme Court, Youngstown attorney James E. Lanzo argued that Hull was entitled to a speedy trial and that "clock" should have started as soon as the order for retrial was handed down by the appellate court.

Rhys B. Cartwright-Jones, who represented the state and the Mahoning County Prosecutor's office, argued there is nothing in state statutes that deals with cases remanded for new trial.

The high court agreed in its decision.

Justice's interpretation

According to Justice O'Donnell, the Ohio Revised Code "specifies that a person charged with a first- or second-degree misdemeanor shall be brought to trial within 90 days after arrest or service of summons," but it does not account for cases in which an appellate court reverses a conviction and remands the matter back to a trial court.

"Because the statute is silent as to this circumstance, we are not in a position either to add language to the statute or to surmise legislative intent," Justice O'Donnell wrote. "If the Legislature had intended the statutorily imposed speedy-trial time limitations to apply to convictions reversed and remanded on a plea of no-contest, it could have easily provided for that circumstance."

The high court also agreed with Cartwright-Jones' argument that if the state Legislature had wanted to include retrials in the statute, it could have -- and still could.

"Had the Legislature wished to have established a maximum time before retrial it could have so stated," Justice O'Donnell wrote. "It did not, and it is not the function of this court to fill the omission by what would amount to judicial legislation."




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