Hurst - Comp. Dis. of Ag. Fact

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HAMILTON COUNTY, OHIO

Comes now the Defendant, «defendant», by and through counsel, and respectfully moves this Court to rule on all pending motions no later than the commencement of voir dire. While Defendant respectfully requests rulings to issue at this Honorable Court’s earliest possible convenience, the commencement of voir dire would be the last viable moment for all pretrial rulings; even then, such a delaymay well imperil Defendant’s Constitutional rights. This Motion is supported by the attached Memorandum.

MEMORANDUM IN SUPPORT

Ohio Crim.R. 12(E) states:

Ruling on motion. A motion made before trial other than a motion for change of venue, shall be timely determined before trial. Where factual issues are involved in determining a motion, the court shall state its essential findings on the record.

This same Rule mandates a statement of essential findings and requires that a ruling be made on a pretrial motions under Crim.R. 12 before trial. SeeCity of Akron v. Milewski, 21 Ohio App. 3d 140, 487 N.E.2d 582 (1985); City of Bryan v. Knapp, 21 Ohio St. 3d 64, 488 N.E.2d 142 (1986). In Knapp, the Ohio Supreme Court succinctly stated:

Crim.R. 12(E) mandates that the court state its essential findings on the record. Without such findings, neither the court of appeals nor this court can properly review the propriety of the trial court's ruling.

21 Ohio St. 3d 65, 488 N.E.2d at 143.

Ohio Crim.R. 48(B) states a similar requirement:

Dismissal by the court. If the court over objection of the state dismisses an indictment, information, or complaint, it shall state on the record its findings of fact and reasons for the dismissal.

Crim.R. 48 has been construed to require a trial court to state its findings of fact and conclusions of law on the record where the court refuses to dismiss an indictment upon a pretrial motion of the Appellant. In State v. Messenger, 49 Ohio App. 2d 341, 361 N.E.2d 465 (1976), the Court held:

If a trial court, over the objection of the defendant, refuses to dismiss an indictment, information, or complaint upon the motion of the defendant therefor, it must state, on the record, its findings of fact and reasons for the refusal so that a reviewing court can determine the propriety thereof.

49 Ohio App. 2d at 466, 361 N.E.2d at 341.

The Ohio Supreme Court implicitly adopted the Messenger holding in Knapp. Under this authority, the trial court may not defer a ruling on the defense motions until after trial has commenced. Failing to provide Defendant and his counsel with clear pre-trial rulings will create an intolerable ambiguity about the rules governing the trial and thereby infringe upon Defendant’s State and Federal constitutional rights to effective assistance of counsel, due process of law, equal protection of the law, confrontation of the state’s evidence against him, and freedom from cruel and unusual punishment. U.S. Const. amends. V, VI, VIII, IX and XIV; Ohio Const. art. I, §§ 1, 2, 5, 9, 10, 16 and 20.

For these reasons, Defendant moves this Court to rule on all pending motions no later than the commencement of voir dire. While Defendant respectfully requests rulings to issue at this Honorable Court’s earliest possible convenience, it is respectfully submitted that the commencement of voir dire is the last viable moment for all pretrial rulings.

CERTIFICATE OF SERVICE

I hereby certify that a copy of this document was served upon the Hamilton County Prosecutor/City of Cincinnati Prosecutor on ______by:

 Ordinary Mail  Fax  Hand Delivery  Dedicated Drop Box

______

Attorney for Defendant

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