R.C. 2945.38 Interpretation

In State v. McClay (July 19, 2001), Cuyahoga App. No. 78432, 2001 Ohio App, the trial court determined that the defendant was incompetent to stand trial and unable to be restored to competency. In our case, the evidence at the competency hearings showed that appellant had a substantial probability of being restored to competency and, in fact, appellant was restored to competency. R.C. 2945.38(H)(4) states: "If the court finds that the defendant is incompetent to stand trial, if the most serious offense with which the defendant is charged is a misdemeanor or a felony other than a felony listed in division (C)(1) of this section, and if the court finds that there is not a substantial probability that the defendant will become competent to stand trial even if the defendant is provided with a course of treatment, or if the maximum time for treatment relative to that offense as specified in division (C) of this section has expired, the court shall dismiss the indictment, information, or complaint against the defendant." R.C. 2945.38(H)(4) does not require the trial court to dismiss an indictment 60 days after the initial order to undergo treatment is made. This requirement is triggered only if the treatment period exceeds 60 days, as provided for in R.C. 2945.38(C). The Court found that the trial court did not err in denying appellant's motion to dismiss the indictment as a violation of R.C. 2945.38.