Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
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
State v. Williams, 157 Ohio App. 3d 374,
-- 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
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.
Return to top of page
Return to Index