If the prosecutor violates your right to a speedy trial, then the case should be dismissed. Your right to a speedy trial means the state must bring you to trial within the time limits proscribed in the Ohio Revised Code. For a first or second degree misdemeanor charge in Ohio, the case must be tried within 90 days unless you waive your right to a speedy trial.
Even if your statutory rights to a speedy trial were not violated, the State might have violated your constitutional rights to a speedy trial after a long delay.
The statute of limitations is set out in R.C. 2901.13(A)(b). It permits the State two years within which to bring misdemeanor charges against an individual. The statute of limitations is different than the right to a speedy trial because one governs when the prosecution must be commenced and the other governs when the case must be tried.
Contact an experienced criminal defense attorney at the Joslyn Law Firm in Columbus, Ohio, for a case in Franklin County or the surrounding areas.
Statutory Right to a Speedy Trial in Ohio
Once a first or second degree misdemeanor charge is filed or an arrest warrant is issued for an individual, the person must be tried within 90 days. R.C. 2945.71(B)(2).
A prosecution is commenced on the earlier of:
- The date an indictment is returned or an information is filed; or
- The date a lawful arrest without a warrant is made;
- The date a warrant, summons, citation or other process is issued.
See Ohio Revised Code 2901.13(E).
A prosecution is not commenced by the return of an indictment or the filing of an information unless reasonable diligence is exercised to issue and execute process on the same. R.C. 2901.13(E).
The prosecution bears the burden of proving the trial commenced within the 90-day statute of limitations. State v. Greer, 2 Ohio App.3d 399, 442 N.E.2d 473 (1981). To do so, the prosecution must demonstrate that reasonable diligence was exercised to serve the summons. State v. King, 103 Ohio App. 3d 210, 212-213, 658 N.E.2d 1138 (1995).
The prosecutors representing the State of Ohio fail to show reasonable diligence when the state attempts an improper service or receives a return on service that is undeliverable and then the state takes no further action. State v. Morris, 20 Ohio App.3d 321, 486 N.E.2d 168 (1984); State v. Greer, 2 Ohio App.3d 399, 442 N.E.2d 473 (1981).
If the delay in prosecution of a criminal case is due to the state's failure to attempt to serve the defendant, the delay is unconstitutionally unreasonable and violates the defendant's right to a speedy trial. State v. Sears, 166 Ohio App.3d 166, 849 N.E.2d 1060 (2005).
Constitutional Right to a Speedy Trial
If the state has not violated the statutory provisions for a speedy trial in Ohio, the U.S. Constitution also provides for a constitutional right to a speedy trial that is broader than the statutory rights set by each state. To assert this claim, the defendant must show that pursuant to the relevant Ohio statutes and case law, the delay is constitutionally unreasonable and defendant has been prejudiced by the delay.
The court will dismiss the case when it is shown that the prosecutors with the State of Ohio failed to bring the defendant to a speedy trial in violation of his state and federal constitutional rights.
The provisions of Section 10, Article I of the Ohio Constitution and of the Sixth Amendment to the U.S. Constitution, as made applicable to the states by the Fourteenth Amendment, guarantee a defendant in a criminal case the right to a speedy trial.
Although statutory periods exist in Ohio, those statutory periods of limitations are not relevant to a determination of whether an individual's constitutional right to a speedy trial has been violated by an unjustified delay in prosecution. State v. Selvage, 80 Ohio St.3d 465, 468, 687 N.E.2d 433 (1997).
For purposes of raising a constitutional challenge based on post-indictment delay, the U.S. Supreme Court set forth a four-part test in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Under the Barker test, a trial court is required to consider four factors:
- The length of delay;
- The reason for the delay;
- The defendant's assertion of his rights; and
- Prejudice to the defendant.
When determining whether constitutional rights to a speedy trial have been violated, the first factor for the court to consider is the length of the delay. Under the Supreme Court's analysis in Barker, the more straight-forward and ordinary the crime, the shorter the amount of time that is required to prejudice the defendant. Barker at 531.
Relying on R.C. 2945.71, the First District Court of Appeals held that for a misdemeanor, any delay longer than 90 days is presumptively prejudicial. Sears at ¶ 12. Therefore, if the length of time from the charges being filed to the service of the warrant is longer than 90 days, the next step of the test is triggered. Id.
The First District addressed the second and third factor of the Barker analysis in State v. Sears. Id. at ¶ 14. In Sears, there was no evidence the state pursued attempts to serve a warrant or complaint on the defendant. Although the complaint and affidavit contained an incorrect zip code, the state never suggested it had a problem locating the defendant or needed extra time to collect witnesses or to file pretrial motions.
In Sears, the defendant never attempted to avoid service or move outside of the jurisdiction; he only learned of the warrant when he was pulled over for a traffic offense nine months after the complaint was filed. In affirming the trial court's dismissal on speedy trial grounds, the court found that the defendant should not be punished for failing to assert a right that he could not have otherwise known about. Id. at ¶ 15.
Likewise, in State v. Looper, a copy of the indictment was mailed to the defendant by certified mail and was returned marked "addressee unknown." State v. Looper, 61 Ohio App.3d 448, 573 N.E.2d 123 (1988). The warrant was not executed until six years later.
"Because the State made no effort to notify the defendant of the indictment at her mother's address, the court found that the 'reason for delay' factor weighed against the state." Id. at 450.
For the fourth factor, the defendant has the burden of showing the prejudice that occurred in his or her particular case. United States v. Lawson, 780 F.2d 535, 541-542 (6th Cir. 1985). A lengthy delay in prosecuting the defendant, by itself, does not constitute actual prejudice. The defendant must demonstrate how the length of the delay has prejudiced his ability to have a fair trial. United States v. Norris, 501 F.Supp.2d 1092, 1096 (S.D.Oh.2007).
The court in Sears noted that impairment of one's defense is the most difficult form of speedy trial prejudice to prove because time's erosion of exculpatory evidence and testimony can rarely be shown. Sears at ¶ 16 citing Doggett v. United States, 505 U.S. 647, 655, 120 L.Ed.2d 520, 112 S.Ct. 2686 (1992). However, the court in Sears held that prejudice is presumed when the government fails to use reasonable diligence to serve the warrant. Sears at ¶ 16.
Finding an Attorney for Speedy Trial Claims
If you are charged with a crime and need a criminal defense attorney to help you fight the charges in Columbus, OH, or the surrounding areas of Franklin County, then contact an experience attorney at the Joslyn Law Firm.
We are experienced in raising speedy trial claims when it can be shown that the state prosecutor did not commence the trial within the statutory time period provided by R.C. 2945.71(B)(2), in violation of the right to a speedy trial.
Our attorneys are experienced in asserting this important right guaranteed by Section 10, Article I of the Ohio Constitution and the Sixth Amendment to the United States Constitution, which is applicable to the State by the Fourteenth Amendment of the U.S. Constitution.
Talk to us about the viability of a motion to dismiss after a violation of the right to a speedy trial in accordance with the Ohio Revised Code, the Federal and State Constitutions, and relevant case law.