[Cite as Indian Hill v. Ledgerwood, 2013-Ohio-1812.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO



CITY OF THE VILLAGE OF                           :     APPEAL NO. C-120448
INDIAN HILL,                                           TRIAL NO. M-12TRD-25296
                                                 :
         Plaintiff-Appellant,
                                                 :
   vs.                                                    O P I N I O N.
                                                 :
KEITH D. LEDGERWOOD,

         Defendant-Appellee.                     :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: May 3, 2013




Frost Brown Todd LLC and Benjamin J. Yoder, for Plaintiff-Appellee,

Keith D. Ledgerwood, pro se.




Please note: this case has been removed from the accelerated calendar.
                    OHIO FIRST DISTRICT COURT OF APPEALS


DINKELACKER, Judge.


        {¶1}   Plaintiff-appellee, the City of the Village of Indian Hill (“Indian Hill”)

appeals from a decision of the Hamilton County Municipal Court granting

defendant-appellee Keith D. Ledgerwood’s motion to dismiss a speeding charge

against him for lack of a speedy trial. We find merit in Indian Hill’s sole assignment

of error, and we reverse the trial court’s judgment.

        {¶2}   The record shows that on February 6, 2012, Ledgerwood was cited for

speeding under Indian Hill Code of Ordinances 73.10. On February 27, 2012, he

appeared in Indian Hill mayor’s court and entered a not-guilty plea. Because Indian

Hill’s charging witness was unavailable, it asked Ledgerwood to sign a waiver of time

to continue the trial, which Ledgerwood refused to do.          After Ledgerwood left

mayor’s court, Indian Hill moved for a nolle prosequi of the charge against him,

which the mayor’s court granted.

        {¶3}   On February 29, 2012, Indian Hill sent Ledgerwood a letter requiring

his appearance for trial in mayor’s court on March 1, 2012.            Indian Hill also

dispatched a police officer to his residence. The officer told him that he had to sign a

waiver of time or he would have to appear in mayor’s court on March 1, 2012.

Ledgerwood appeared in mayor’s court as stated in the letter. He was found guilty

after trial.

        {¶4}   Ledgerwood appealed that guilty verdict to the Hamilton County

Municipal Court. On March 28, 2012, he moved to dismiss the charge against him

because of the earlier nolle prosequi in mayor’s court. The municipal court granted




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                      OHIO FIRST DISTRICT COURT OF APPEALS



the motion, finding that Indian Hill had dismissed the charge, but had failed to

properly recite Ledgerwood for the offense.

       {¶5}   On April 16, Ledgerwood was cited again for the same speeding

violation, and he was summoned to appear in mayor’s court on April 23, 2012. He

appeared on that date, and the mayor’s court granted his request for a continuance

until May 21, 2012.

       {¶6}   On May 21, 2012, Ledgerwood again appeared in mayor’s court.

Following a trial, he was found guilty. He again appealed the mayor’s court decision

to the municipal court. Subsequently, he filed a motion to dismiss the charge on

speedy-trial grounds. He argued that Indian Hill had failed to bring him to trial in

30 days as required by R.C. 2945.71(A).          The trial court granted Ledgerwood’s

motion, and Indian Hill has filed a timely appeal from that judgment.

       {¶7}   In its sole assignment of error, Indian Hill contends that the municipal

court erred in granting Ledgerwood’s motion to dismiss. It argues that the dismissal

without prejudice of the original citation tolled the speedy-trial period until the

issuance of the subsequent citation.         Therefore, it argues, it did not violate

Ledgerwood’s speedy-trial rights because only 28 days were chargeable to the state

between his citation and trial. This assignment of error is well taken.

       {¶8}   R.C. 2945.71(A) provides that a person charged with a minor

misdemeanor must be brought to trial within 30 days. The issue in this case is

whether the time between the nolle prosequi of the original charge and the second

citation was chargeable against the state.




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       {¶9}    The speedy-trial period only runs against the state during the time in

which an indictment or charge is pending. State v. Broughton, 62 Ohio St.3d 253,

259, 581 N.E.2d 541 (1991). Consequently, the Ohio Supreme Court has held that for

purposes of computing how much time has run against the state, “the time period

between the dismissal without prejudice of an original indictment and the filing of a

subsequent indictment premised upon the same facts as alleged in the original

indictment, shall not be counted[.]” Id. at paragraph one of the syllabus. The only

exception to this rule is if the defendant is held in jail or released on bail during the

time between the original indictment and the subsequent indictment. Id. at 260-261.

       {¶10} Courts have applied the same rule in misdemeanor cases where the

charge was nolled or dismissed without prejudice. See id. at 258; State v. Bonarrigo,

62 Ohio St.2d 7, 10-11, 402 N.E.2d 530 (1980); Westlake v. Cougill, 56 Ohio St.2d

230, 232-233, 383 N.E.2d 599 (1978); State v. Smith, 5th Dist. No. 2007-CA-100,

2008-Ohio-2680, ¶ 13-15; State v. Stamps, 127 Ohio App.3d 219, 227, 712 N.E.2d

762 (1st Dist.1998). Those courts reasoned that during that time period, no charges

were pending against the defendant. See State v. Azbell, 112 Ohio St.3d 300, 2006-

Ohio-6552, 859 N.E.2d 532, ¶ 13-20; Broughton at 258.

       {¶11} Ledgerwood was originally cited on February 6, 2012. He appeared in

mayor’s court on February 27, 2012, 21 days after the original citation. On that date,

Indian Hill was granted a nolle prosequi of the charge against him. Because the

charge was no longer pending, the time stopped running against the state.

       {¶12} Ledgerwood argues that the time was still running because a police

officer showed up at his door on February 29, 2012, and told him that he had to


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                   OHIO FIRST DISTRICT COURT OF APPEALS



appear in mayor’s court. He was then tried in mayor’s court on May 1, was found

guilty, and was forced to appeal the mayor’s court’s judgment to the municipal court.

He argues that Indian Hill violated Crim.R. 48(A) by failing to terminate the

prosecution.

       {¶13} We agree that Indian Hill acted improperly by trying to resurrect the

charge that had been dismissed. A nolle prosequi concludes a prosecution and it

cannot be reinstated at a later date. Any action taken subsequent to the filing of a

nolle prosequi is a nullity. State v. Eubank, 6th Dist. No. L-11-1211, 2012-Ohio-3512,

¶ 7; Gates Mills v. Yomtovian, 8th Dist. No. 88942, 2007-Ohio-6303, ¶ 21-22.

Therefore, while Indian Hill should not have had the police officer appear at

Ledgerwood’s door or try him in mayor’s court on the dismissed citation, those

actions did not cause the time to run for speedy-trial purposes.

       {¶14} The time did not begin to run again until April 16, 2012, when

Ledgerwood was properly cited the second time for the February 6, 2012, traffic

violation. He was told to appear in mayor’s court on April 23, 2012, seven days later.

Those seven days were chargeable to the state. On April 23, the court granted

Ledgerwood’s motion for a continuance until May 21. Therefore, the time was tolled

under R.C. 2945.72(H) until May 21, 2012. State v. Matthews, 1st Dist. Nos. C-

060669 and C-060692, 2007-Ohio-4881, ¶ 28.

       {¶15}   Ledgerwood appeared for court on May 21, 2012, and was tried for

the offense in the second citation. That was the 28th day that was chargeable to the

state, which was within the 30-day period required by R.C. 2945.71(A).

Consequently, we hold that the trial court erred in granting Ledgerwood’s motion to


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dismiss for lack of a speedy trial. We sustain Indian Hill’s sole assignment of error,

reverse the municipal court’s judgment, and remand the cause to the municipal court

with instructions to overrule Ledgerwood’s motion to dismiss for lack of a speedy

trial, and for further proceedings consistent with this opinion.

                                                Judgment reversed and cause remanded.



CUNNINGHAM, P.J., and FISCHER, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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