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As Reported by House Criminal Justice Committee
123rd General Assembly
Regular Session
1999-2000 | Sub. S. B. No. 8 |
SENATORS BLESSING-JOHNSON-OELSLAGER-CUPP-HOTTINGER-WATTS-
LATTA-NEIN-WHITE-MUMPER-GARDNER-DRAKE-SCHAFRATH-SPADA-
REPRESENTATIVES LUCAS-DePIERO-WOMERBENJAMIN-WILLAMOWSKI-
TIBERI-TAYLOR
A BILL
To amend section 2937.03, to enact new section 2937.32 and section 2937.222,
and to repeal section 2937.32 of the Revised Code to
enact procedures to
implement the amendment to Section 9 of Article I of
the Ohio Constitution adopted in the November 1997
general election pursuant
to which a judge may deny bail to a person
accused of specified
offenses.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 2937.03 be amended and new section 2937.32 and section
2937.222 of the Revised Code be enacted to read as follows:
Sec. 2937.03. After the announcement, as provided by section 2937.02 of the
Revised Code, the accused shall be arraigned by the magistrate, or
clerk, or
prosecutor of the court reading the affidavit or complaint, or reading its
substance, omitting purely formal parts, to him THE ACCUSED
unless such THE reading be OF THE AFFIDAVIT OR
COMPLAINT IS waived.
The judge or magistrate shall then inquire of the accused whether he
THE ACCUSED
understands the nature of the charge. If he THE ACCUSED does
not indicate understanding,
the JUDGE OR magistrate shall give explanation in terms of the statute
or ordinance
claimed violated. If he THE ACCUSED is not represented by
counsel and expresses A desire to
consult with an attorney at law, the judge or magistrate shall continue the
case for a reasonable time to allow him THE ACCUSED to send for
or consult with counsel
and shall set bail for such THE later appearance if the offense
is bailable. If
the accused is not able to make bail, BAIL IS DENIED, or the
offense is not bailable, the
court or magistrate shall require the officer having custody of THE
accused
forthwith IMMEDIATELY to take a message to any attorney at law
within the municipal
corporation where THE accused is detained, or IMMEDIATELY to
make available to the
accused
forthwith use of A telephone for calling to arrange for legal
counsel or bail.
Sec. 2937.222. (A) ON THE MOTION OF THE PROSECUTING ATTORNEY OR
ON THE JUDGE'S OWN MOTION, THE JUDGE SHALL HOLD A HEARING TO DETERMINE WHETHER
AN ACCUSED PERSON CHARGED WITH AGGRAVATED MURDER WHEN IT IS NOT A CAPITAL
OFFENSE, MURDER, A FELONY OF THE FIRST OR SECOND DEGREE, A VIOLATION OF
SECTION 2903.06 of the Revised Code, OR A FOURTH DEGREE FELONY OMVI OFFENSE SHALL
BE DENIED BAIL. THE JUDGE SHALL ORDER THAT THE ACCUSED BE DETAINED UNTIL THE
CONCLUSION OF THE HEARING. EXCEPT FOR GOOD CAUSE, A
CONTINUANCE ON THE MOTION OF THE STATE SHALL NOT EXCEED THREE COURT
DAYS. EXCEPT FOR GOOD CAUSE,
A CONTINUANCE ON THE MOTION OF THE ACCUSED SHALL NOT EXCEED FIVE COURT DAYS
UNLESS THE MOTION OF THE ACCUSED WAIVES IN WRITING THE FIVE-DAY LIMIT AND
STATES IN WRITING A SPECIFIC PERIOD FOR WHICH THE ACCUSED REQUESTS A
CONTINUANCE. A CONTINUANCE GRANTED UPON A MOTION OF THE ACCUSED THAT WAIVES
IN WRITING THE FIVE-DAY LIMIT SHALL NOT EXCEED FIVE COURT DAYS AFTER THE
PERIOD OF CONTINUANCE REQUESTED IN THE MOTION.
AT THE HEARING, THE ACCUSED HAS THE RIGHT TO BE
REPRESENTED BY COUNSEL AND, IF THE ACCUSED IS INDIGENT, TO HAVE
COUNSEL APPOINTED. THE JUDGE SHALL AFFORD THE
ACCUSED AN OPPORTUNITY TO TESTIFY, TO PRESENT WITNESSES AND
OTHER INFORMATION, AND TO CROSS-EXAMINE WITNESSES WHO APPEAR AT
THE HEARING. THE RULES CONCERNING ADMISSIBILITY OF EVIDENCE IN CRIMINAL
TRIALS DO NOT APPLY TO THE PRESENTATION AND CONSIDERATION OF INFORMATION AT
THE HEARING. REGARDLESS OF
WHETHER THE HEARING IS BEING HELD ON THE MOTION OF THE
PROSECUTING ATTORNEY OR ON THE COURT'S OWN MOTION, THE
STATE HAS THE BURDEN OF PROVING THAT THE PROOF IS
EVIDENT OR THE PRESUMPTION GREAT THAT THE ACCUSED COMMITTED THE
OFFENSE WITH WHICH THE ACCUSED IS CHARGED, OF PROVING THAT
THE ACCUSED POSES A SUBSTANTIAL RISK OF SERIOUS PHYSICAL HARM TO
ANY PERSON OR TO THE COMMUNITY, AND OF PROVING THAT NO RELEASE CONDITIONS WILL
REASONABLY ASSURE THE SAFETY OF THAT PERSON AND THE COMMUNITY.
THE JUDGE MAY REOPEN THE
HEARING AT ANY TIME BEFORE TRIAL IF THE JUDGE
FINDS THAT INFORMATION EXISTS THAT WAS NOT KNOWN TO THE MOVANT
AT THE TIME OF THE HEARING AND THAT THAT INFORMATION HAS A MATERIAL BEARING ON
WHETHER BAIL SHOULD BE DENIED. IF A MUNICIPAL COURT OR
COUNTY COURT ENTERS AN ORDER DENYING BAIL, A JUDGE OF THE COURT OF
COMMON PLEAS HAVING JURISDICTION OVER THE CASE MAY CONTINUE THAT
ORDER OR MAY HOLD A HEARING PURSUANT TO THIS SECTION TO DETERMINE
WHETHER TO CONTINUE THAT ORDER.
(B) NO ACCUSED PERSON SHALL BE DENIED BAIL
PURSUANT TO THIS SECTION UNLESS THE JUDGE FINDS BY CLEAR AND CONVINCING
EVIDENCE THAT THE PROOF
IS EVIDENT OR THE PRESUMPTION GREAT THAT THE ACCUSED COMMITTED
THE OFFENSE DESCRIBED IN DIVISION
(A) OF THIS SECTION WITH WHICH
THE ACCUSED IS CHARGED, FINDS BY CLEAR AND CONVINCING EVIDENCE THAT THE
ACCUSED POSES A SUBSTANTIAL
RISK OF SERIOUS PHYSICAL HARM TO ANY PERSON OR TO THE COMMUNITY, AND FINDS BY
CLEAR AND CONVINCING EVIDENCE THAT NO RELEASE CONDITIONS WILL REASONABLY
ASSURE THE SAFETY OF THAT PERSON
AND THE COMMUNITY.
(C) THE JUDGE, IN DETERMINING WHETHER THE ACCUSED PERSON
DESCRIBED
IN DIVISION (A) OF THIS SECTION
POSES A SUBSTANTIAL RISK OF SERIOUS PHYSICAL HARM TO ANY PERSON
OR TO THE COMMUNITY AND WHETHER THERE ARE CONDITIONS OF RELEASE THAT WILL
REASONABLY ASSURE THE SAFETY OF THAT PERSON AND THE COMMUNITY, SHALL CONSIDER
ALL AVAILABLE
INFORMATION REGARDING ALL OF THE FOLLOWING:
(1) THE NATURE AND CIRCUMSTANCES OF THE OFFENSE CHARGED,
INCLUDING WHETHER THE OFFENSE IS AN OFFENSE OF VIOLENCE OR
INVOLVES ALCOHOL OR A DRUG OF ABUSE;
(2) THE WEIGHT OF THE EVIDENCE AGAINST THE ACCUSED;
(3) THE HISTORY AND CHARACTERISTICS OF THE ACCUSED,
INCLUDING, BUT NOT LIMITED TO, BOTH OF THE FOLLOWING:
(a) THE CHARACTER, PHYSICAL AND MENTAL CONDITION,
FAMILY TIES, EMPLOYMENT, FINANCIAL RESOURCES, LENGTH OF
RESIDENCE IN THE COMMUNITY, COMMUNITY TIES, PAST CONDUCT,
HISTORY RELATING TO DRUG OR ALCOHOL ABUSE, AND CRIMINAL HISTORY
OF THE ACCUSED;
(b) WHETHER, AT THE TIME OF THE CURRENT ALLEGED
OFFENSE OR AT THE TIME OF THE ARREST OF THE ACCUSED, THE ACCUSED WAS ON
PROBATION, PAROLE,
POST-RELEASE CONTROL, OR OTHER RELEASE PENDING TRIAL,
SENTENCING, APPEAL, OR COMPLETION OF SENTENCE FOR THE COMMISSION
OF AN OFFENSE UNDER THE LAWS OF THIS STATE, ANOTHER STATE, OR
THE UNITED STATES OR UNDER A MUNICIPAL ORDINANCE.
(4) THE NATURE AND SERIOUSNESS OF THE DANGER TO ANY PERSON
OR THE COMMUNITY THAT WOULD BE POSED BY THE PERSON'S RELEASE.
(D)(1) AN ORDER OF THE COURT OF
COMMON PLEAS DENYING BAIL PURSUANT TO THIS SECTION IS A FINAL APPEALABLE
ORDER. IN AN APPEAL PURSUANT
TO DIVISION (D) OF THIS SECTION, THE COURT OF APPEALS SHALL DO ALL
OF THE FOLLOWING:
(a) GIVE THE APPEAL PRIORITY ON ITS CALENDAR;
(b) LIBERALLY MODIFY OR DISPENSE WITH FORMAL REQUIREMENTS IN THE
INTEREST OF A SPEEDY AND JUST RESOLUTION OF THE APPEAL;
(c) DECIDE THE APPEAL EXPEDITIOUSLY;
(d) PROMPTLY ENTER ITS JUDGMENT AFFIRMING OR REVERSING THE ORDER
DENYING BAIL.
(2) THE PENDENCY OF AN APPEAL UNDER THIS SECTION DOES NOT DEPRIVE
THE COURT OF COMMON PLEAS OF JURISDICTION TO CONDUCT FURTHER PROCEEDINGS
IN THE CASE OR TO FURTHER CONSIDER THE ORDER DENYING BAIL IN ACCORDANCE
WITH THIS SECTION. IF, DURING THE PENDENCY OF AN APPEAL UNDER
DIVISION (D) OF THIS SECTION, THE COURT OF COMMON PLEAS SETS ASIDE
OR TERMINATES THE ORDER DENYING BAIL, THE COURT OF APPEALS SHALL DISMISS
THE APPEAL.
(E) AS USED IN THIS SECTION:
(1) "COURT DAY" HAS THE SAME MEANING AS IN SECTION
5122.01 OF THE REVISED
CODE.
(2) "FOURTH DEGREE FELONY OMVI OFFENSE" HAS THE SAME
MEANING AS IN SECTION 2929.01 OF THE
REVISED
CODE.
Sec. 2937.32. IF AN OFFENSE IS NOT BAILABLE, IF THE COURT
DENIES BAIL TO THE ACCUSED, OR IF THE ACCUSED DOES NOT OFFER
SUFFICIENT BAIL, THE COURT SHALL ORDER THE ACCUSED TO BE
DETAINED.
Section 2. That existing section 2937.03 and section 2937.32 of the Revised
Code are
hereby repealed.
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