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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

TIME (214)

Crim. R. 45 -- Time

State v. Meyer, 189 Ohio App. 3d 628, 2010-Ohio-4804 – Theft charges were based on failure to return rented construction equipment by the date agreed upon. A jury question asked if they were limited to consideration of the dates provide in the indictment. The prosecutor was allowed to extend the time period through an end date chosen arbitrarily. Defendant asked for the jury to be excused in accordance with Crim. R. 7(D). Request was erroneously denied. The defense had been linked to the dates specified. Thus the amendment would prejudice the defense if trial continued with the same jury.

State v. Wilkinson, 178 Ohio App. 3d 99, 2008-Ohio-4400 – Parolee was indicted for escape before he was picked up. Prior to trial the indictment was amended to include the entire time he was on the run, including days following the return of the indictment. This did not violate Criminal Rule 7, as the date of the escape is not an element, but it did violate the constitutional requirement of presentment and consideration by a grand jury.

State v. Williams, 157 Ohio App. 3d 374, 2004-Ohio-2857 -- Post conviction petition mailed from prison arrived one day late.  Cuyahoga County declines to apply the mailbox rule, which in the federal courts treats a document as filed on the date it is handed over to prison authorities for mailing. State ex rel. Tyler v. Alexander (1990), 52 Ohio St. 3d 84 followed.  Compare Houston v. Lack (1988), 487 U.S. 266, 270.

State v. Steiner (1991), 71 Ohio App. 3d 249 -- In calculating whether a defendant has been brought to trial within the time prescribed by R.C. 2945.71, the date of arrest is not counted and the last day of the period in question shall be counted. Also see State v. Lautenslager (1996), 112 Ohio App. 3d 108.

State v. McCornell (1993), 91 Ohio App. 3d 141, 144-145 -- Applying Crim. R. 45, when the date by which trial must commence falls on the weekend, the first following business day becomes the date by which trial must commence.

State v. Schneider (1993), 87 Ohio App. 3d 252 -- To calculate the number of prior offenses in a five year period for purposes of determining the penalty for OMVI, the date of the first conviction is excluded and the date of arrest for the offense in question must fall before the fifth anniversary. See dissent.

State v. Bowman (1996), 108 Ohio App. 3d 276 -- Requirement that a BAC Verifier be calibrated every seven days was satisfied when calibration came eleven minutes after the expiration of seven consecutive twenty-four hour periods. Day is held to mean midnight to midnight, with compliance by the end of the final day sufficient.

State v. Westfall (1976), 46 Ohio St. 3d 31 -- If a defendant is incarcerated in a prison and acts without the aid of counsel, his notice of appeal is timely if within the time allowed for filing the notice of appeal, such notice is delivered to the proper prison authorities for forwarding to the court. Also see State v. Williamson (1967), 10 Ohio St. 2d 195.

State v. Schulte (1997), 118 Ohio App. 3d 184 -- A defendant convicted prior to September 21, 1995 had one year to file his petition for postconviction relief, notwithstanding the shorter time limit applicable for those convicted after that date. Also see State v. Saylor (1998), 125 Ohio App. 3d 633, holding that since the specified deadline fell on a Saturday, the actual deadline was the following Monday.

State v. Smith (1997), 123 Ohio App. 3d 48 -- Prisoner's postconviction had to be filed in the trial court by September 21, 1996. Delivery to prison mail system by that date was not sufficient. Opinion fails to address State v. Westfall (1976), 46 Ohio St. 3d 31. Same court reached opposite (and correct) conclusion with respect to the filing of a notice of appeal in a postconviction case in State v. Owens (1997), 121 Ohio App. 3d 34, holding date of delivery to prison authorities was controlling.

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