[Cite as State v. Kick, 2012-Ohio-1806.]


                                        COURT OF APPEALS
                                      HOLMES COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. Patricia A. Delaney, P. J.
        Plaintiff-Appellee                        Hon. W. Scott Gwin, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 11 CA 24
MICHAEL KICK

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Municipal Court,
                                               Case No. 11 CRB 489


JUDGMENT:                                      Reversed and Vacated



DATE OF JUDGMENT ENTRY:                        April 23, 2012



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CHRISTINE C. WILLIAMS                          BRYAN K. BARNARD
ASSISTANT PROSECUTOR                           KENNEDY, CICCONETTI, KNOWLTON
164 East Jackson Street                        & BUYTENDYK, LPA
Millersburg, Ohio 44654                        558 North Market Street
                                               Wooster, Ohio 44691
Holmes County, Case No. 11 CA 24                                                           2

Wise, J.

       {¶1}       Appellant Michael Kick appeals the December 13, 2011, Judgment Entry

of the Holmes County Municipal Court denying his motion to dismiss.

                          STATEMENT OF THE FACTS AND CASE

       {¶2}       Appellant Michael A. Kick was arrested on August 14, 2011, and charged

with one count of domestic violence, in violation of R.C. §2919.25 (A), a misdemeanor

of the first degree.

       {¶3}       Appellant spent the night in jail and appeared in the Holmes County

Municipal Court on August 15, 2011, then was released on his own recognizance and a

trial date set.

       {¶4}       Appellant, through counsel, filed a not guilty plea on August 17, 2011, and

requested formal discovery, to which the State responded on August 23, 2011.

Reciprocal discovery was timely answered on August 29, 2011.

       {¶5}       On November 9, 2011, the charge of domestic violence was dismissed

against the defendant and a new charge of disorderly conduct, R.C. §2917.11 (A)(1),

was filed on the same facts and circumstances.

       {¶6}       On November 14, 2011, Appellant acknowledged service of the new

complaint/summons.

       {¶7}       On November 30, 2011, Appellant was arraigned on the new charge and

his counsel filed a not guilty plea the same date. Trial was set for December 13, 2011.

       {¶8}       On December 12, 2011, counsel for Appellant filed a motion to dismiss on

speedy trial grounds.
Holmes County, Case No. 11 CA 24                                                         3


       {¶9}   By Judgment Entry filed December 13, 2011, the trial court denied

Appellant’s motion to dismiss. (T. at 3).

       {¶10} On December 13, 2011, Appellant entered a plea of no contest and paid

his court costs that same date. (T. at 6).

       {¶11} The following day, December 14, 2011, Appellant caused to be filed a

motion for stay of execution of sentence and escrow of costs paid. Appellant further filed

an affidavit stating inter alia, he did not intend to abandon appellate review by tendering

the costs, he has a substantial stake in the judgment of conviction, and he believes

there is valid subject matter for appellate court review

       {¶12} It is from this judgment entry that Appellant now appeals, assigning the

following errors for review:

                               ASSIGNMENT OF ERROR

       {¶13} "I. THE TRIAL COURT’S APPLICATION OF THE LAW TO THE FACTS

OF THE CASE WAS IN ERROR.”

                                             I.

       {¶14} In Appellant’s sole Assignment of Error he argues that the trial court erred

in denying his motion to dismiss on speedy trial grounds. We agree.

       {¶15} The right to a speedy trial is guaranteed by the Sixth Amendment to the

United States Constitution and Section 10, Article I of the Ohio Constitution. Pursuant to

these constitutional mandates, R.C. §2945.71 through R.C. §2945.73 prescribe specific

time requirements within which the State must bring an accused to trial. State v. Baker,

78 Ohio St.3d 108, 110, 1997-Ohio-229, 676 N.E.2d 883.
Holmes County, Case No. 11 CA 24                                                           4


       {¶16} As relevant to the instant action, R.C. §2945.71(B)(2) requires that a

person, such as Appellant, against whom a first degree misdemeanor is pending must

be brought to trial within 90 days after the person's arrest or service of summons. Each

day the defendant is held in jail in lieu of bond, except for the first day, counts for three

days for speedy trial purposes. See R.C. §2945.71(E). Once a defendant establishes a

prima facie case of a violation of his right to a speedy trial, the burden then shifts to the

State to demonstrate the statutory limit was not exceeded by establishing the time was

properly extended pursuant to R.C. §2945.72. State v. Butcher (1986), 27 Ohio St.3d

28, 30–31, 500 N.E.2d 1368.

       {¶17} Since a defendant's right to a speedy trial is guaranteed by statute and by

the Sixth and Fourteenth Amendments to the United States Constitution, extensions of

speedy trial time are to be strictly construed against the State. State v. Singer (1977),

50 Ohio St.2d 103, 362 N.E.2d 1216. Revised Code §2945.73 mandates that if an

accused is not brought to trial within the time requirements of R.C. §2945.71 and

§2945.72, the accused shall be discharged. The law in Ohio is that speedy trial time

starts to run the day after arrest. R.C. §2945.71. However, speedy trial time is tolled

during “(E) Any period of delay necessitated by ... motion, proceeding, or action made

or instituted by the accused; ...”(H) The period of any continuance granted on the

accused's own motion, and the period of any reasonable continuance granted other

than upon the accused's own motion.” R.C. §2945.72.

       {¶18} In the case sub judice, Appellant was arrested on August 14, 2011, and

spent that night in jail.

       {¶19} The time calculation is as follows:
Holmes County, Case No. 11 CA 24                                                         5


       {¶20} 08/14/2011 Arrest date:      -           3 days

       {¶21} 08/15/2011 to 09/15/2011 -              32 days

       {¶22} 09/16/2011 to 10/15/2011 -              30 days

       {¶23} 10/16/2011 to 11/15/2011 -              31 days

       {¶24} 11/16/2011 to 12/13/2011 -              28 days

       {¶25} Total days elapsed           =     124 days

       {¶26} Appellant herein acknowledges that the speedy trial time was tolled during

the case for seven (7) days between August 17, 2011 and August 23, 2011, when

defense counsel requested discovery and the State responded to the request; and

again for the six (6) days between the nolle prosequi of the domestic violence charge on

November     9,   2011,   and   service   of   the    disorderly   conduct   summons   and

acknowledgment of the same on November 14, 2011, by the Appellant.

       {¶27} Based on the above calculations, total days elapsed (124 days) minus

total days tolled (13 days) results in the passage of 111 days before Appellant’s trial

date, 21 days in excess of the statutorily prescribed ninety (90) day period.

       {¶28} The State of Ohio concedes that the ninety (90) day statutory time for a

speedy trial was exceeded in this matter.

       {¶29} Based on the foregoing, we find that the trial court erred in denying

Appellant's Motion to Dismiss on speedy trial grounds.
Holmes County, Case No. 11 CA 24                                                    6


      {¶30} For the foregoing reasons, the judgment of the Municipal Court of Holmes

County, Ohio, is hereby reversed and Appellant’s conviction and sentence are vacated.


By: Wise, J.

Delaney, P. J., and

Gwin, J., concur.



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                                           ___________________________________


                                           ___________________________________

                                                              JUDGES
JWW/d 0412
Holmes County, Case No. 11 CA 24                                                 7


            IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
MICHAEL KICK                             :
                                         :
       Defendant-Appellant               :         Case No. 11 CA 24




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Municipal Court of Holmes County, Ohio, is reversed and Appellant’s

conviction and sentence are vacated.

       Costs assessed to Appellee.




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                                                           JUDGES
