The STATE of Ohio, Appellant, v. JOHNSON, Appellee, 169 Ohio App. 3d 552

Wolff, Judge. {¶ 1} The state of Ohio appeals from an order dismissing its complaint against Lisa Johnson with prejudice. The basis for the dismissal was the state’s failure to provide discovery and because the court was “out of time on this.” {¶ 2} The state assigns error as follows: {¶ 3} “1.

The trial court erred when it denied the state’s request for a short continuance of the trial in this matter and dismissed the case.” {¶ 4} The complaint against Johnson, filed October 19, 2005, alleged: {¶ 5} “Lisa Johnson submitted a treasurer’s report on November 5, 2003 to the West Carrollton Recreation Association board meeting that deposits made for September and October were conflicting with Farmers and Merchants Bank statement.” {¶ 6} On October 20, Johnson, by counsel, entered a not-guilty plea, requested a pretrial conference, and waived her speedy-trial rights under R.C. 2945.71 et seq.

On October 21, 2005, the trial court scheduled this matter for a pretrial conference on January 23, 2006. On that day, Johnson filed a jury demand, and a “prejury pretrial” conference was scheduled for February 13, 2006. On that day, a jury trial was scheduled for March 30, 2006. {¶ 7} Johnson’s demand for discovery, filed October 24, 2005, contained seven specific requests, none of which is pertinent to this appeal, and an eighth, general request, for “[a]ll other matters discoverable pursuant to Criminal Rule 16.” {¶ 8} On February 1, 2006, Johnson moved for a bill of particulars.

The bill of particulars, filed March 20, contained virtually the same operative language as the complaint, as quoted above. {If 9} On March 29, Johnson moved to dismiss for the reason that bank statements had not been furnished in discovery.

At the argument on March 29 on Johnson’s motion to dismiss, the prosecutor represented that Detective Bell of the West Carrollton Police Department had prepared a discovery packet, which the prosecutor claimed to have sent to defense counsel’s office, “probably [in] February.” The prosecutor also represented that he and Lennen, who was going to represent Johnson at trial, had “discussions several times about this case.” The prosecutor represented that Lennen advised him that morning that he did not have the bank statements and that he told Lennen he did not have the statements, either.

He then called Detective Bell, who did have the statements. The prosecutor stated that the documents were now available, and requested a short continuance to transmit the documents to Lennen so the case could be tried. Lennen did not refute any of the prosecutor’s representations but, in response to the trial court’s question, said he could not be ready for trial the following day. At the conclusion of argument, the trial court dismissed the case. {¶ 10} The trial court relied on the Rules of Superintendence as justification for dismissal, which we believe was a weak reed upon which to lean.

Although the Rules of Superintendence required this case to be tried within 90 days— Sup.R. 39(B)(1) — the first pretrial conference in this case was scheduled beyond the 90-day deadline. When Johnson demanded a jury trial on the day scheduled for pretrial, the judge scheduled a prejury pretrial conference to take place three weeks later, and when that conference did not result in an agreed disposition, a jury trial was scheduled to take place six weeks later, on March 30.

We realize that Johnson waived her speedy-trial rights, but the trial court’s scheduling on this case suggests that if indeed Sup.R. 39(B)(1) was a factor in its decision to dismiss, it was a convenient rather than a compelling factor. {¶ 11} We are also sympathetic to the state’s suggestion that if Lennen had not received the bank statements, he should have let the prosecutor know before the eve of trial. From the complaint, defense counsel must have known that bank statements would be evidence in the case. The discovery packet had been sent to defense counsel in February.

Lennen and the prosecutor had several discussions about the ease prior to March 29. While Johnson undoubtedly was entitled to counsel who was prepared, we think the proper response would have been to grant the brief continuance requested by the prosecutor to allow Lennen to be prepared. This is especially true because Johnson had waived her speedy-trial rights and it appears that the state’s failure to provide the bank statements was inadvertent rather than intentional.

The prosecutor had, perhaps unwisely, delegated preparation of the discovery packet to Detective Bell, who may not have appreciated the import of the language “all other matters discoverable pursuant to Criminal Rule 16.” In any event, there is no suggestion on this record that either the prosecutor or Detective Bell was intentionally depriving Johnson of discovery. {¶ 12} Finally, the continuance requested by the prosecutor was the first request by either party for a continuance of either a pretrial or trial date. {¶ 13} On the basis of the foregoing discussion, we are constrained to conclude that the trial court acted unreasonably in overruling the state’s motion for a brief continuance and in dismissing this case. {¶ 14} The assignment of error is sustained. {¶ 15} The judgment of dismissal is reversed, and the cause is remanded for further proceedings.

Judgment reversed and cause remanded. Milligan, J., concurs. Donovan, J., dissents.