311 N.E.2d 658
No. 73-780Supreme Court of Ohio.
Decided May 22, 1974.
Habeas corpus — Writ allowed, when — Commitment to Lima State Hospital — Release from custody and return to court — R.C. 5122.35 — Petitioner unable to stand trial in forseeable future.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court.
The pertinent facts are stipulated. Petitioner was indicted December 7, 1966, by the Cuyahoga County Grand Jury for first degree manslaughter. Before trial, petitioner was found to be not sane and unable to fully understand the nature of the charges against him, and unable to
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cooperate with his counsel in his own defense. Petitioner was committed to the Department of Mental Hygiene and Correction until restored to reason. R.C. 2945.38. Petitioner is still in the custody of respondent under that order. Petitioner is not now restored to reason nor is he likely to be in the foreseeable future.
Petitioner’s only contention in this court is that his continued commitment, pursuant to R.C. 2945.38, is a denial of due process of law under the Fourteenth Amendment to the United States Constitution.
Mr. Edward R. Stege, Jr., and Mr. Douglas L. Rogers, for petitioner.
Mr. William J. Brown, attorney general, and Mr. James M. Caulfield, for respondent.
Per Curiam.
This case falls within the purview of Jackson v. Indiana
(1972), 406 U.S. 715, and Burton v. Reshetylo (1974), 38 Ohio St.2d 35.
Since petitioner is unlikely to be able to stand trial in the foreseeable future he is entitled to be released in accordance with the procedures outlined in Burton, in which the court stated at page 48: “* * * the Common Pleas Court should release the person into the custody of the Probate Court pursuant to R.C. 5122.35.”
Therefore the writ of habeas corpus is allowed, and petitioner is released from custody of the respondent and is returned to the Probate Division of the Court of Common Pleas of Cuyahoga County for proceedings pursuant to R.C. 5122.35.
Writ allowed.
O’NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.
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