DocketNumber: No. 75736.
Judges: Patton, McMonagle, Rocco
Filed Date: 12/9/1999
Status: Precedential
Modified Date: 10/19/2024
On remand, the matter remained pending for more than twenty-one months without any action on the remand order. Defendant filed a petition for postconviction relief which asked the court to "dismiss the matter" pursuant to Crim.R. 32 (A) (1)1 due to the delay in resentencing. The court granted the petition in part and dismissed the petition in part. The court found it lacked jurisdiction as a municipal court to entertain the petition because R.C.
Although Fed.R.Civ.P.
Ohio courts dealing with the issue of unnecessary delay in resentencing, however, have applied Crim.R. 32 (A) (1) to resentencing. See, e.g., State v. Collier (Oct. 24, 1991), Cuyahoga App. No. 61318, unreported; State v. Crosier (May 31, 1988), Tuscarawas App. No. 87 AP 12-0098, unreported (fourteen-month delay between appellate remand and resentencing violated Crim.R. 32 (A) (1)).
However, in State v. Taylor (Oct. 29, 1992), Cuyahoga App. No. 63295, unreported, this court cited to Booker v. Engle (S.D. Ohio 1982),
Notwithstanding, we find that our remand order in Brackis in essence ordered a resentencing. The twenty-two month delay between the remand and resentencing was a clear violation of the Sixth Amendment right to a speedy trial.
Defendant claims the twenty-one month delay between remand and resentencing, during which time he remained free on appellate bond, would be extremely prejudicial if he were ordered to serve the remaining two months of his sentence. Under the circumstances, we find that the delay caused by the court's failure to act timely on our order to make some disposition of probation constituted a Sixth Amendment speedy trial violation of defendant's rights. We therefore sustain the assignment of error and vacate the remaining portion of defendant's jail term.
Judgment vacated and appellant discharged.
It is ordered that appellant recover of appellee his costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Euclid Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
TIMOTHY E. McMONAGLE, P.J., KENNETH A. ROCCO, J., CONCUR.
______________________________ JUDGE JOHN T. PATTON