LISBON - A sex charge issued against a Monroeville man in 2005 has been dismissed due to a violation of his right to a speedy trial.
Judge David Tobin of Columbiana County Common Pleas Court made the decision Thursday to dismiss the indictment against 32-year-old Nicolas Vesely and release him from custody.
"There has been a lapse of five years since this indictment. That presumptively raises an issue of prejudice to the defendant's ability to raise a defense," he wrote.
Vesely was indicted by the county grand jury on Dec. 14, 2005 for unlawful sexual conduct with a minor, a third-degree felony, for allegedly engaging in oral sex with a 13-year-old child in November 2004 at a residence on Bandy Road in Homeworth.
According to Tobin's decision, a warrant was issued for Vesely's arrest on the same date he was indicted, with his last known address in Lakewood. The Sheriff's Office contacted the Lakewood Police Department and learned he was incarcerated in the Lorain Correctional Institution. He was placed into the LEADS system on Jan. 5, 2006 with a notation that he was in the Lorain facility.
Shortly before he was to be released from prison this past July, a detainer was issued to the prison to hold him on a warrant, he was returned to Columbiana County and served with the indictment on Sept. 30 this year. In his judgment, Tobin noted no notice was sent to the prison about the indictment until the detainer was issued.
"There is no evidence that the defendant knew of the charges or the indictment until July of 2009," he wrote.
According to law, a defendant has a right to have his case heard within a certain amount of time. An appellate court also ruled that
under the speedy trial statute, a defendant "has the right to demand the disposition of indictments if the defendant has been notified by the warden of the institution of the indictment and the source of that indictment."
He explained that the court also ruled that the prosecutor has the duty to serve the notice on the institution to trigger the statute, making it then up to the defendant to exercise his rights to request disposition. If the defendant isn't notified, the clock for trying him begins to run at the time of indictment.
"In this case the state made almost no effort to find this defendant after being told by a police department he was in prison. The Ohio Department of Rehabilitation and Correction has an easily accessed publicly available 'offender search' Web site which this court uses often to find defendants. A five-minute perusal of that site would have located the defendant and he could have been returned for service and processing of the case or served notice by the prosecuting attorney," Tobin wrote.
Vesely was 27 years old at the time of the alleged offense.
Mary Ann Greier can be reached at mgreier@salemnews.net
