Fifth District Summary for the Week of 11/15/2011

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State v. McKittrick: This OVI case comes from Fairfield County. The major issue is in contention, after determining that the citation was properly served upon the defendant, is whether a trial date 100 days after the offense violates the right to speedy trial. Both the trial court and the Fifth District note that this first degree misdemeanor is required by statute to be brought to trial within 90 days. However, Mr. McKittrick didn’t show up for his initial arraignment. The Court properly noted that not showing up for arraignment was neglect on the part of the accused and thus, 27 days should have been subtracted from the time tolled. This subtraction brings the total number of days to 73, which is well within the statutorily prescribed amount of time.

State v. Markey: I imagine that this is one of those appeals that counsel strongly suggested is not worthwhile yet the client wanted to proceed regardless. Essentially, Mr. Markey was upset that the trial court sentenced him to eleven months when the prosecution recommended a six month sentence. As we all know, it’s difficult to win this type of case on appeal. This case was no different and the trial court’s sentence was upheld.

State v. Burns: The two major issues in this case are whether a witness’s testimony as to how the police found Mr. Burns’s name was inadmissible hearsay and whether counsel was ineffective for failing to file an alibi notice one week before trial. The first issue was overruled because under Ohio law, statements offered to explain a police officer’s conduct during an investigation and not for the truth of the matter asserted are not hearsay. The second issue was overruled because one of the two alibi witnesses was still permitted to testify. The Court also notes overwhelming evidence of guilt for Mr. Burns and thus, none of his assignments of error were sustained.

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