Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
Also see Judgment;
Sentence appeals; Bail.
Right to appeal and right to counsel on appeal
Criminal Rule 12(K) interlocutory appeals
Preservation of the record
in no merit cases
error; Structural error
Application for reconsideration
Mandate; Res judicata; Law of the case doctrine
R.C. 2505.02 -- Final order.
R.C. 2945.67 -- Appeal by state.
R.C. 2953.02 -- Review of judgments.
R.C. 2953.21 -- Petition for postconviction
28 U.S.C. 1257 -- Certiorari.
Crim. R. 32(B) -- Notification of right to
Greenlaw v. United
States (2008), 128 S.Ct. 2559 – In imposing sentence the district
court failed to impose the mandatory minimum term. Government did not appeal
or cross appeal, though the defendant appealed. Appellate court of its own
initiative could not order an increased sentence. In civil and criminal
cases, in both trial courts and appellate courts the parties frame the
issues for decision and the courts serve as neutral arbiters. Plain error
rule does not allow the appellate court to address other issues.
v. A-Best Products, 120 Ohio St. 3d 149,
2008-Ohio-5327 -- Syllabus: "(1) An Ohio court decision
applies retrospectively unless a party has contract rights or
vested rights under the prior decision. (Peerless
Elec. Co. v. Bowers (1955), 164 Ohio St. 2009…followed.)
(2) An Ohio court has discretion to apply its decision
prospectively after weighing the following considerations: (1)
Whether the decision establishes a new principle of law that was
not foreshadowed in prior decisions, (2) whether retroactive
application of the decision promotes or retards the purpose
behind the rule defined in that decision, and (3) whether
retroactive application of the decision causes an inequitable
result. (Chevron Oil Co. v. Huson
(1971), 404 U.S. 97…adopted and applied.
Jones, 181 Ohio App. 3d 435,
2009-Ohio-1500 – Motion to certify a conflict denied. Court
ruled in the defendant‘s favor that the mens rea element for the
use of a weapon element in the aggravated robbery statute is
recklessness, but against the defense on the assignment of error
involving that claim. Though the court‘s ruling was in conflict
with the decisions of other courts, certification is not in
order as the defendant did not suffer from the court‘s
determination of the subordinate issue. ¶5: "When the
conflicting reasons are not dispositive of both cases, a
conflict need not be certified."
State v. Burnett
(2001), 93 Ohio St. 3d 419 -- The Supreme Court of Ohio is not bound by
rulings on federal constitutional or statutory law made by a federal court
other than the United States Supreme Court. However, such decisions will be
accorded some persuasive weight.
State v. Campbell
(2000), 90 Ohio St. 3d 320, 324 -- Invited error occurs when a party asks
the court to take some action later claimed to be erroneous, or
affirmatively consents to a procedure proposed by the trial judge. Also see
State v. Murphy (2001), 91 Ohio St. 3d 516, 535.
In re Moore, 158 Ohio App. 3d 679,
2004-Ohio-4544, ¶ 24 -- Generally a Supreme Court decision interpreting a
statute is retrospective as it reflects an interpretation of the correct
interpretation of the provision. An exception is made if all of the following
are met: (1) The decision is one of first impression that was not clearly
foreshadowed. (2) Retrospective application will retard application of the
statute, in view of its prior history, purpose, and effect. (3) Retrospective
application will produce substantial injustice or hardship.
State v. Taylor, Erie App. No. E-02-045,
2003-Ohio-3682 -- Civil Rule 58(B) notice requirement applied to rulings on
motions for DNA testing and postconviction relief which were summarily
overruled. Time for filing notice of appeal only begins to run after the clerk
of courts served the orders on the defendant.
State v. Latson
(1999), 133 Ohio App. 3d 475, 483 -- Concurring judge explains why it is not his
practice to mention the trial court judge by name in appellate opinions. Also
see Miller v. Miller (2000), 139 Ohio App. 3d 512, 521.
Toledo v. Crenshaw, Lucas App. No.
2003-Ohio-306 -- A party does not have standing to appeal a ruling
that was not adverse to him. Defendant wanted to challenge the manner in which
parking tickets are handled, but municipal court dismissed the complaint. Also
see Gabriel v. Youngstown (1996), 75 Ohio St. 3d 618, 619; Ohio
Contract Carriers Association v. Public Utilities Commission
(1942), 140 Ohio St. 160, syllabus.
State v. Smith, Seneca App. No. 13--3-25,
2003-Ohio-5461, ¶ 25 -- "...(A)n appellant usually does not have standing to
argue issues affecting another person." Also see State v. Anderson, 154
Ohio App. 3d 789,
¶ 38 (statements taken in violation of codefendant's right to counsel);
In re 1995 Mercedes C280, 168 Ohio App. 3d 48,
2006-Ohio-1565 (forfeiture of car defendant used in committing offenses, but
did not own).
State ex rel. Slagle v. Rogers, 103
Ohio St. 3d 89,
2004-Ohio-4354 -- Syllabus: "When a party to an action requests
copies of a court transcript of the proceedings in that action,
R.C. 149.43 is
superseded by R.C. 2301.24, and the party must pay the official court reporter
the fees designated by the court pursuant to the latter statute." Specific
statute governs over the general statute as to transcripts. However, tapes are
not included, so a copy must be furnished at the cost of duplication.
State v. Yeager, Carroll App. No. 03 CA
2004-Ohio-4406, ¶ 2 -- "...App. R. 25 only authorizes the certification of
a conflict between the opinions of two or more courts of appeal, and not between
a court of appeals and the Ohio Supreme Court."
State v. Lett, 161 Ohio App. 3d 274,
2005-Ohio-2665 -- The Cuyahoga County Court of Appeals uses a long standing en
banc procedure to resolve conflicting decisions within the district. Dissent at
¶74-97 discusses why this procedure is unauthorized and unwise.
J.J., 111 Ohio App. 3d 205,
2006-Ohio-5484 -- The procedure available for certified
conflicts among appellate districts does not apply to conflicts
within a single district. Paragraph two of the syllabus:
"Appellate courts are duty-bound to resolve conflicts within
their respective appellate districts through en banc
proceedings." Also see In re C.F.,
113 Ohio St. 3d 73,
rel. Everhart v. McIntosh, 115 Ohio St. 3d 195,
2007-Ohio-4798, ¶14 -- A premature notice of appeal does not
divest the trial court of authority to proceed as the appeal has
not been perfected.
Cassidy v. Glossip (1967), 12 Ohio St. 2d
17 -- Paragraph six of the syllabus: "The syllabus of a decision of the Supreme
Court of Ohio states the law of the case." See Rule 1, Supreme Court Rules for
the Reporting of Opinions.
State v. Boggs (1993), 89 Ohio App. 3d
206, 213 -- "Where the justice writing an opinion discusses matters or gives
expression to views on issues not carried into the syllabus, it is merely the
personal opinion of the justice...Those observations or opinions are not binding
on inferior courts...Be that as it may...(a)ny court which disregards the
Supreme Court's discussion of certain issues merely on the basis that it was not
carried into the syllabus would be treading on dangerous and unstable ground."
State v. George (1975), 50 Ohio App. 2d
297, 305-312 -- While reported decisions may generally be of greater weight,
unreported decisions of the Franklin County Court of Appeals may be cited as
precedent and relied upon as such by the courts of this county. (Note: Current
status of unreported decisions is set forth in Rule 2(G) of the Supreme Court
Rules for the Reporting of Opinions. Unpublished opinions are considered
persuasive authority, but are not controlling except as between the parties
involved. Reported decisions are controlling, but only within the district in
which they were decided.)
State v. Glover (1978), 60 Ohio App. 2d
283, 287 -- Decisions of the U.S. Court of Appeals may be persuasive, but are
State v. Pembaur (1982), 69 Ohio St. 2d
110 -- A majority of the court of appeals judges hearing a case are required to
render a judgment. A judgment must be vacated if a member of the panel resigns
before judgment is rendered and the remaining two judges split.
State v. Smith (1997), 80 Ohio St. 3d 89
-- Direct appeal to the Supreme Court in death penalty cases is not cruel and
unusual punishment, and violates neither due process nor equal protection.
State v. Lazarro (1996), 76 Ohio St. 3d
261, 265 -- Court rejects retroactivity claim based on application of a Supreme
Court decision issued following conviction but before appellate review. "The
general rule is that a decision of a court of supreme jurisdiction overruling a
former decision is retrospective in its operation, and the effect is not that
the former was bad law, but that it never was the law." Peerless Elec. Co. v.
(1955), 164 Ohio St. 209, 210..." See dissent for arguments why the defendant's
acts should not have been punishable as falsification.
City of Hubbard v. Luchansky (1995), 102
Ohio App. 3d 410 -- While an appellate court may take judicial notice of a
matter even if the trial court failed to do so, this has generally been limited
to matters bearing on legal issues. Noting the lack of Ohio authority on point,
court elects to follow precedent from other states that where a trial court has
failed to take judicial notice of a matter bearing on an issue of fact, the
appellate court will not take judicial notice of that matter.
Tallmadge v. McCoy (1994), 96 Ohio App.
3d 604 -- Absence of file stamp is not critical to determination whether appeal
was filed in a timely manner where the court's certified record established the
date the order appealed from was entered.
In re Miami County Grand Jury Directive to
Creager (1992), 82 Ohio App. 3d 269 -- Person found in contempt for
refusal to supply handwriting exemplar is entitled to appointment of counsel for
purposes of appeal.
State v. Thomas (1996), 111 Ohio App. 3d
515 -- Trial court corrected sentence while motion for reopening was pending in
the court of appeals and a notice of appeal to the Supreme Court had been filed.
Trial court had not lost jurisdiction. Supreme Court had not yet exercised its
discretion to accept jurisdiction, nor had court of appeals assumed jurisdiction
by granting the motion to reopen. Compare State v. Richard (1996), 113
Ohio App. 3d 141 where court was held without jurisdiction to vacate plea and
conduct further proceedings after notice of appeal had been filed.
State v. Watson (1975), 48 Ohio App. 2d
110 -- Trial court is without authority to dismiss action on defense motion
while prosecution's appeal is pending. Also see
Vavrina v. Greczanik (1974), 40 Ohio App. 129, 132 (motion for relief
from judgment in a civil case).
In re Terrance P. (1997), 124 Ohio App.
3d 487 -- Attorney signed juveniles name to a pro se notice of appeal.
(1) Trial court was without authority to dismiss appeal. (2) By virtue of Civ.
R. 11 an actual signature was required, but the defence may be remedied by leave
State v. Woodruff (1983), 10 Ohio App. 3d
326, 327 -- "...(T)he rule of 'invited error,' a corollary of the principle of
equitable estoppel, prohibits a party who induces error from taking advantage of
such error on appeal. See 5 Ohio Jurisprudence 3d, Appellate Review, Section 543
et seq." Also see State v. Hill (1987), 37 Ohio App. 3d 72; State
(1997), 119 Ohio App. 3d 385, 395.
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Right to appeal and right to counsel on appeal
State ex rel. Sapp v.
Franklin County Court of Appeals, 118 Ohio St. 3d 368,
2008-Ohio-2637 – A party declared a vexatious litigator by a trial court
must seek leave to appeal from the court of appeals and obtain leave in time for
the notice of appeal to be timely. Writ of prohibition issued to prevent court
of appeals from proceeding.
Halbert v. Michigan (2005), 125 S.Ct.
2582 -- A defendant has the right to appointed counsel in order to pursue leave
to appeal from a guilty or no contest plea. Michigan provides for appeals as of
right from trials, but requires leave to appeal when there has been a plea. The
trial court refused to appoint counsel. First level appeals are calculated to
correct error, and as with other first level appeals there is a right to
appointed counsel, even though leave is a matter of discretion. Second level
discretionary appeals are addressed to matters of broad public interest or to
resolving conflicts, which is the rationale for there not being a right to
appointed counsel at that stage.
State v. Ferguson, 108 Ohio St. 3d
2006-Ohio-1502, ¶97 -- There is no constitutional right to
self-representation in a direct appeal. See Martinez v. California Court of
Appeal, Fourth Appellate District (2000), 528 U.S. 152, 163. Nor is there a
right to hybrid representation when the defendant is represented by counsel.
Abney v. United States (1977), 431
U.S. 651, 656 -- There is no constitutional right to appeal. The right to appeal
in a criminal case is established by statute. Also see McKane v. Durston
Douglas v. California (1963), 372 U.S.
353 -- An indigent has a right to appointed counsel for the direct appeal of a
conviction in state courts.
Ross v. Moffitt (1974), 417 U.S. 600 --
Right to appointed counsel does not extent to discretionary appeal to state
supreme court. Also see Wainwright v. Torna (1982), 455 U.S. 586.
Evitts v. Lucey (1985), 469 U.S. 387 --
Right to counsel on appeal encompasses the right to effective assistance of
counsel and not mere nominal representation.
Jones v. Barnes (1983), 463 U.S. 745 --
Counsel appointed to prosecute an appeal from a criminal conviction does not
have a duty to pursue every non-frivolous issue the client wishes to raise.
Roe v. Flores-Ortega (2000), 528 U.S.
470, 120 S.Ct. 1029, 1036 -- "...(C)ounsel has a constitutionally-imposed duty
to consult with the defendant about an appeal whether there is reason to think
either (1) that a rational defendant would want to appeal (for example, because
there were nonfrivolous grounds for appeal), or (2) that this particular
defendant reasonably demonstrated to counsel that he was interested in
appealing." To show prejudice, a defendant must show that but for counsel's
omission he would have appealed in a timely manner.
Martinez v. Court of Appeal of California
(2000), 120 S.Ct. 684 -- The right to self-representation at the trial level
does not extend to appeals. Neither the Sixth Amendment not the Due Process
Clause of the Fourteenth provide a right to self representation, though state
constitutions may be interpreted to do so. Faretta v. California (1974),
422 U.S. 806, distinguished.
State v. McKinney (October 31, 1978),
Franklin Co. App. No. 78AP-121, unreported (1978 Opinions 3103, 3104) --
"Although a defendant must be able to counsel with his attorney in preparing his
defense at the trial stage, the same necessity does not exist at the appellate
level." Defendant had been hospitalized due to a psychotic disturbance.
State v. Ashworth (1999), 85 Ohio St. 3d
56, 64 -- "...(A) defendant cannot waive this court's review of his death
sentence, though he can waive review of his conviction.
State v. Butts (1996), 112 Ohio App. 3d
683 -- Following a guilty verdict, the defendant agreed not to appeal in
exchange for dismissal of a specification alleging a prior aggravated felony
conviction. The right to appeal may be voluntarily waived. The agreement could
be specifically enforced.
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State v. Baker,
119 Ohio St. 3d 197,
2008-Ohio-3330 – Judgment entry did not set forth the defendant‘s initial
plea of not guilty. On motion of the prosecutor the Court of Appeals dismissed
for want of a final appealable order. Criminal Rule 32© calls for the judgment
entry to include the plea. Court decides the plea need not always be included,
and that a judgment entry of conviction must be a single document. Syllabus: "A
judgment of conviction is a final appealable order under
when it sets forth (1) the guilty plea, the jury verdict, or the finding of the
court upon which the conviction is based; (2) the sentence; (3) the signature of
the judge; and (4) entry on the journal by the clerk of court. (Crim. R. 32©,
Tate, 179 Ohio App. 3d 71,
2008-Ohio-5686 – Confession was suppressed. The state
appealed and lost. When the defendant moved for discharge the
state countered it now had sufficient evidence to proceed, and
further filed a Civil Rule 60(B) motion for relief from judgment
with respect to suppression. Both motions were denied. Defendant
appealed and the state "cross-appealed." (1) For the defendant,
there was no final appealable order. (2) The state‘s appeal was
untimely. The time for seeking leave to appeal is not extended
by characterizing a motion filed after thirty days as a
cross-appeal which would be timely if filed within ten days of
the defendant‘s notice. Nor may the state stretch the time for
filing based on Civ.R. 58(B)‘s service requirement, because
despite reliance on a civil rule this is not a civil case.
Rice, 180 Ohio App. 3d 599,
2009-Ohio-162 – Defendant‘s application for intervention in
lieu of conviction was denied without a hearing. Subsequently
she entered a negotiated plea and appealed. Court rejects the
prosecutor‘s claim that the denial did not constitute a final
appealable order because denial without a hearing was allowed,
and thus a substantial right was not affected. At ¶26: "The
state‘s argument misses a critical point. Defendant‘s appeal is
not from the trial court‘s November 20, 2007 decision and order
denying her request for intervention in lieu of conviction.
Rather, defendant appeals from the trial court‘s May 14, 2008
judgment entry and sentence, which is a final appealable order,
assigning as error that the court abused its discretion in
denying defendant‘s request for intervention in lieu of
conviction. The issue is whether the final order is tainted by
an abuse of discretion in the trial court‘s denial of
defendant‘s motion for intervention in lieu of conviction."
State v. Muncie
(2001), 91 Ohio St. 3d 440 -- Syllabus: "(1) A petition for forced medication
under R.C. 2945.38 is a 'provisional remedy' ancillary to the criminal case
undertaken by the state against an incompetent defendant. (R.C. 2905.02[A]
construed.) (2) When a trial court orders an incompetent defendant to be
forcibly medicated with psychotropic drugs in an effort to restore the defendant
to competency, that order is final and appealable. (R.C. 2905.02[B]
construed.)" State v. Hunt (1976), 47 Ohio St. 3d 170, concerning orders
relating to place of commitment, distinguished on the basis that forced
medication represents a severe interference with interests protected by the Due
State v. Williams, Lucas App. Nos.
2003-Ohio-2533 -- A trial court order disqualifying appointed
counsel is not a final appealable order.
State v. Roble, Lucas Ap. No.
2004-Ohio-5404 -- Denial of a motion for admission pro hac vice in a
criminal case is not a final appealable order.
Youngstown v. Ortiz, 153 Ohio App. 3d 271,
2003-Ohio-2238 -- Order that accused misdemeanant begin treatment to make him
competent to stand trial deemed a final appealable order.
State v. Coffman
(2001), 91 Ohio St. 3d 125 -- Syllabus: "A trial court's order denying shock
probation pursuant to former R.C. 2947.061(B) is not a final appealable
order." This is said to be regardless of whether the denial constitutes a
constitutional or statutory violation. Reasoning is that within the meaning
of R.C. 2505.02(A)(2) the denial flows from a special proceeding but does
not affect a substantial right. Three justices would hold denial is a final
appealable order pursuant to
R.C. 2505.02(B)(4). Also see State v. Singh
(2001), 146 Ohio App. 3d 38.
State v. Woods (2001), 141 Ohio App. 3d
549 -- The denial of judicial release is not a final appealable order. Also see
<State v. Greene 2nd Dist. No. 02-CA-17,
State v. Ricciardi
(1999), 135 Ohio App. 3d 155 -- The overruling of a motion to suppress
evidence in an OMVI case is does not qualify as an order denying a
provisional remedy and thus is not a final appealable order under revised
R.C. 2505.02. See dissent.
State v. Hubbard
(1999), 135 Ohio App. 3d 518 -- The overruling of a motion to dismiss on the
basis of double jeopardy does not qualify as an order denying a provisional
remedy. Also see State v. Hubbard, 150 Ohio App. 3d 623,
¶ 40-51 concluding prosecutor's questions were not calculated to goad the
defense into moving for a mistrial.
Westfall v. Cross
(2001), 144 Ohio App. 3d 211 -- Unqualified denial of pro hac vice status
is a final appealable order.
State v. Pasqualone
(2000), 140 Ohio App. 3d 650 -- Denial of a motion to vacate court costs is not
a final appealable order. Even if it were, res judicata would ban consideration
of any claim which could have been raised in an appeal from the initial
McCowan v. McCowan
(2001), 145 Ohio App. 3d 170 -- If objections to a magistrate's decision are
pending there is no final appealable order.
State v. Keith, Cuyahoga App. No. 81125,
2002-Ohio-7250 -- Where the record does not reflect reassignment of the case to
a visiting judge, any order by the visiting judge is void and not appealable.
State v. Nowak, 151 Ohio App. 3d 652,
2003-Ohio-681 -- An administrative license suspension linked to a charge of
driving while intoxicated is a separate civil proceedings. Notice of appeal must
be filed within thirty days.
State v. Stuber, Hancock App. No. 5-02-49,
2003-Ohio-2938 -- In a traffic case, bond forfeiture without the entry of
conviction is not a final appealable order.
State v. Sharrar, Lucas App. No. L-03-1257
-- An entry finding the state has proven identity in an extradition case is not
a final appealable order.
Parma v. Blatnica, Cuyahoga App. No.
84661 -- Magistrate signed the line allocated for the judge's signature adopting
the magistrate's action. Appeal dismissed for lack of a final appealable order.
State v. Gilmer, 160 Ohio App. 3d 75,
2005-Ohio-1387 -- Failure to include a mandatory license suspension in the
judgment entry renders the judgment void, and, thus, not a final appealable
State v. Harris (1981), 2 Ohio App. 3d 48
-- The judgment entry must be filed before an appeal can be perfected.
State v. Dickey (1991), 74 Ohio
App. 3d 587 -- Judgment must explicitly state that the defendant has been found
guilty to constitute a final appealable order.
State v. Brown (1989), 59 Ohio App. 3d 1
-- Judgment of trial court is not final unless judgment entry disposes of each
State v. Henderson (1979), 58 Ohio St. 2d
171 -- A judgment of conviction requires both a guilty verdict and a sentence.
In re Sekulich (1981), 65 Ohio St. 2d 13
-- To be appealable, a finding of delinquency requires that a disposition be
made. Also see In re Whittington
(1969), 17 Ohio App. 2d 164; In re Bolden (1973), 37 Ohio App. 2d 7.
In re Murray (1990), 52 Ohio St. 3d 155
-- An adjudication that a child is neglected or dependent, accompanied by a
disposition awarding temporary custody to a children services agency is a final
State ex rel. Wright v. Ohio Adult Parole
Authority (1996), 75 Ohio St. 3d 82 -- Paragraph one of the syllabus: "Civ.
R. 54(B) applies in determining the appealability to the Supreme Court of orders
in original actions, such as mandamus, entered by a Court of Appeals."
North Canton v. Hutchinson (1996), 75
Ohio St. 3d 112 -- Syllabus: "Absent explicit review and judgment by a trial
court, a directive issued by a jail authority releasing a defendant and
suspending the commencement of his or her sentence because the jail is at
maximum capacity and cannot accommodate the defendant is not an 'order' that may
be appealed. (R.C. 2505.03[A] and
2505.02, construed and applied.)"
Polikoff v. Adam (1993), 67 Ohio St. 3d
100 -- Syllabus: "Orders that are entered in actions that were recognized at
common law or in equity and were not specially created by statute are not orders
entered in a special proceedings pursuant to
R.C. 2505.02. (Amato v. General
Motors Corp. , 67 Ohio St. 2d 253...overruled.)"
State v. Crago (1990), 53 Ohio St. 3d 243
-- Syllabus: "The overruling of a motion to dismiss on grounds of double
jeopardy is not a final appealable order. (R.C. 2505.02, construed and applied;
State v. Thomas . 61 Ohio St. 2d 254...paragraph one of the syllabus,
overruled.) Compare Abney v. United States (1977), 431 U.S. 651.
State v. Myers (1994), 92 Ohio App. 3d
750 -- Applying Polikoff v. Adam
(1993), 67 Ohio St. 3d 100, the prosecutor may not take an interlocutory appeal
from an order that grand jury minutes be disclosed to the defense.
State v. Port Clinton Fisheries (1984),
12 Ohio St. 3d 114 -- Syllabus: "A trial court order compelling the government
to disclose the identity of a confidential informant is a final appealable
State v. Johnson (1984), 10 Ohio St. 3d
34 -- Ruling that defendant be administered a polygraph examination at state
expense and that results may be admissible is a final appealable order from
which prosecutor may seek leave to appeal.
In re Grand Jury (1996), 76 Ohio St. 3d
236 -- Applying Polikoff v. Adam
(1993), 67 Ohio St. 3d 100, the denial of a motion to quash a grand jury
subpoena duces tecum is not a final appealable order. Grand jury
proceedings existed at common law, and thus are nor special proceedings.
State ex rel. Keenan v. Calabrese (1994),
69 Ohio St. 3d 176 -- The trial court granted the prosecution's motion to
disqualify retained counsel of choice based upon a claimed conflict of interest.
Held that this ruling was not a final appealable order and that a writ of
prohibition or mandamus would not issue as an appeal after trial would furnish
an adequate remedy at law. Also see State v. Keenan (1998), 81 Ohio St.
3d 133, 136-137 upholding disqualification.
State v. George (1994), 98 Ohio App. 3d
371 -- Defendant was convicted of per se and impaired driving OMVI
charges, but sentenced on only one. Though the offenses would have merged,
absence of sentence as to one charge meant there was no final appealable order.
Cleveland v. Trzebuckowski (1999), 85
Ohio St. 3d 524 -- Notice of appeal was filed more than thirty days after the
court's decision was made known, but before it was journalized. Appeal was
timely. The notice was premature rather than late, and was to be treated as
filled immediately upon the journalization of the entry.
In re Zakov (1995), 107 Ohio App. 3d 716
-- An entry merely incorporating the recommendations of a referee's report does
not constitute a final appealable order. Statement that restitution is to be
determined in the future renders the entry interlocutory.
In re Mitchell (1994), 93 Ohio App. 3d
153 -- No final appealable order where signature is rubber stamped instead of
actually signed by the judge.
State v. Hunt (1976), 47 Ohio St. 2d 170
-- Finding that the defendant is not competent to stand trial is not a final
appealable order. Also see State v. Scott (1984), 20 Ohio App. 3d 215;
Inskeep v. State (1880), 35 Ohio St. 482 and 36 Ohio St. 145; State v.
Hagert (1944), 144 Ohio St. 316; State v. Hunt (1976), 47 Ohio St. 2d
State v. Yee (1989), 55 Ohio App. 3d 88
-- Ruling on motion for continuance is not a final appealable order.
State, ex rel. Eberling, v. Nugent
(1988), 40 Ohio St. 3d 129 -- A ruling on motion to consolidate is not a final
Middletown v. Jackson (1983), 8 Ohio App.
3d 431 -- Ruling on motion to dismiss on speedy trial grounds is not a final
State v. Hawkins (1986), 30 Ohio App. 3d
259 -- Overruling of motion to dismiss specification not a final appealable
State v. Rudge (1993), 89 Ohio App. 3d
429, 432-436 -- Mistrial was declared following a guilty verdict at the guilt
phase of a capital case, but before the penalty phase, based on juror
misconduct. Held to be a final appealable order, though by leave of court and
not as a matter of right.
State v. Chamberlain (1964), 177 Ohio St.
104 -- Ruling made before sentencing on motion to withdraw guilty plea is not a
final appealable order.
Lakewood v. Pfeifer (1992), 83 Ohio App.
3d 47 -- Refusal to grant a nolle at the request of the prosecutor is a final
State v. McLaughlin (1997), 122 Ohio App.
3d 418 -- Though neither revocation of bond nor the entry of a nolle prosequi
is a final appealable order, the revocation of bond coupled with a nolle
State v. Chalender (1994), 99 Ohio App.
3d 4 -- Denial of a motion for treatment in lieu of conviction is not a final
State v. Matthews (1998), 81 Ohio St. 3d
375 -- Syllabus: "Pursuant to
R.C. 2505.02 and
2505.03(A), a trial court's order
granting the defendant a new trial in a criminal case is a final appealable
order which the state may appeal by leave of court. (State v. Huntsman
, 18 Ohio St. 2d 206...no longer applicable.)
State v. Brandon (1993), 86 Ohio App. 3d
671 -- Adverse ruling on a motion for super-shock probation is a final
State v. Bissantz (1987), 30 Ohio St. 3d
120 -- State may appeal ruling on expungement motion as a matter of right as
such proceedings are civil in nature and not subject to
In re Becker (1974), 39 Ohio St. 2d 84 --
Bindover order of Juvenile Court is not a final appealable order.
In re Hartman (1983), 2 Ohio St. 3d 154
-- Syllabus: "R.C. 2505.02 grants the courts of appeals jurisdiction over
appeals from juvenile court judgments and final orders rendered in juvenile
traffic offender proceedings."
In re Devlin (1992), 78 Ohio App. 3d 543
-- Child was found unruly and final disposition was transferred to another
county, which had not yet determined whether or not to accept jurisdiction. The
court also issued a temporary custody order in favor of the child's father who
lived in that county. Neither ruling was a final appealable order.
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State v. Howard,
174 Ohio App. 3d 562,
2007-Ohio-4334, ¶7-10 – Defendant claimed retroactive application of the
State v. Foster excised sentencing statutes
operated as an ex post facto. Claim is beyond the jurisdiction of a Court of
Appeals, which may not review the judgments of the Supreme Court.
State v. Fawcett
(2001), 91 Ohio St. 3d 1 -- Syllabus: "Courts of appeals have jurisdiction
to review judgments entered by those inferior courts located within the
territorial boundaries of their appellate districts." Thus where a municipal
court has jurisdiction spreading over more than one county, appeal lies to
the appellate district within which the court sits.
Yee v. Erie County Sheriff's Department
(1990), 51 Ohio St. 3d 43 -- When a case has been appealed the trial court
retains all jurisdiction not inconsistent with the Court of Appeals'
jurisdiction to reverse, modify of affirm the judgment on appeal. Thus the
trial court retained jurisdiction to rule upon pretrial motions which were
not the subject of an interlocutory appeal taken by the state.
State v. Marvin
(1999), 134 Ohio App. 3d 63, 66 -- Once the defendant perfects an appeal from
the sentence imposed, any action by the trial court on the sentence is
inconsistent with the jurisdiction of the appellate court to reverse, modify or
affirm that judgment. Any judgment resulting from such further proceedings is
Howard v. Catholic Social Services of
Cuyahoga County (1994), 70 Ohio St. 3d 141, 146-147 -- A pending appeal
divests the trial court of jurisdiction to consider the merits of a Civ. R.
60(B) motion for relief from judgment.
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In re S.J.K., 114
Ohio St. 3d 23,
2007-Ohio-2621 -- Syllabus: "The imposition of points on a traffic
offender's driving record is a statutorily imposed penalty sufficient to create
a collateral disability as a result of the judgment and preserves the
justiciability of an appeal even if the offender has voluntarily satisfied the
judgment." May nullify State v. Berndt (1987), 29
Ohio St. 3d 3.
Evans, 113 Ohio St. 3d 100,
2007-Ohio-861 -- Paragraph two of the syllabus: "App. R.
12(A)(1)(c) requires an appellate court to decide each
assignment of error and give written reasons for its decision
unless the assignment of error is made moot by a ruling on
another assignment of error." The Eighth District was considered
to have too readily deemed moot a retaliatory sentencing
assignment of error after granting relief on another sentencing
L.W., 168 Ohio App. 3d 613,
2006-Ohio-644 -- The child who was the subject of neglect
and dependency hearing died during the objections process. The
action is moot. The subject matter of the action, custody, was
abated. The capable of repetition evading review exception does
not apply since the repetition aspect is too speculative. Nor
does the debatable constitutional question exception apply.
Culver v. City of Warren
(1948), 84 Ohio App. 373, 393 -- "Actions or opinions are described as "moot"
when they are or have become fictitious, colorable, hypothetical, academic or
dead. The distinguishing characteristic of such issues is that they involve no
actual genuine, live controversy, the decision of which can definitely affect
existing legal relations. * * * "A moot case is one which seeks to get a
judgment on a pretended controversy, when in reality there is none, or a
decision in advance about a right before it has been actually asserted and
contested, or a judgment upon which some matter which, when rendered, for any
reason cannot have any practical legal effect upon a then-existing controversy."
(Citations omitted.) Also see Grove City v. Clark, Franklin App. No.
2002-Ohio-4549; James A. Keller, Inc. v. Flaherty (1991), 74
Ohio App. 3d 788, 791.
State v. Goff, 154 Ohio App. 3d 59,
2003-Ohio-4524, ¶ 14-17 -- Error in obtaining statements in violation of
Miranda is mooted by the state not using those statements at trial.
State v. Adams, Cuyahoga App. No.
2004-Ohio-6630 -- An appeal from a felony conviction is not moot despite
the defendant having served the entire prison sentence. Attendant civil
disabilities and postrelease control are continuing consequences of the
State v. Clark, Portage App. No.
2002-Ohio-4816 -- Trooper was convicted of making an unsafe turn.
Though she had paid the fine, the case was not moot as within her employment she
was subject to a progressive disciplinary system and conviction could affect her
chances for promotion.
State v. James-Neville, Belmont App.
No. 03 BE 68,
2004-Ohio-6840 -- While felony appeals are generally not mooted by
the completion of the sentence, there is an exception when only the correctness
of the length of the sentence is at issue. Exception is made here with respect
to a low level felony as the issue raised is capable of repetition yet evading
review. Also see State v. Campbell, 166 Ohio App. 3d 363,
Smith v. Leis, 106 Ohio St. 3d 309,
2005-Ohio-5125 -- According to fn. 1 at p. 312, the capable of repetition yet
evading review mootness exception is limited to there being a reasonable
expectation that the same complaining party will be subject to the same action
again. But even though this defendant is doing so much time that he is unlikely
ever again to face posting cash-only bail, the court addresses the legality of
such bail. The great public interest in the constitutional question overrides
Cleveland v. Mathis (1999), 136 Ohio
App. 3d 41, 43 -- Ongoing probation is a sufficient disability to overcome any
State v. Golston (1994), 71 Ohio St. 3d
224 -- Syllabus: "A person convicted of a felony has a substantial stake in the
judgment of conviction which survives the satisfaction of the judgment imposed
upon him or her. Therefore, an appeal challenging a felony conviction is not
moot even if the entire sentence has been satisfied before the matter is heard
on appeal. (State v. Wilson , 41 Ohio St. 2d 236...and State v.
, 29 Ohio St. 3d 3...distinguished; State v. Williams
(1992), 80 Ohio App. 3d 542...disapproved." Holding applies even if the
defendant has previously been convicted of a felony.
State v. McGettrick (1987), 31 Ohio St.
3d 138 -- Death of the defendant while an appeal is pending moots both the
appeal and the underlying conviction unless either the defendant's
representative or the state moves that a personal representative of the decedent
be made a party. Footnote indicates fine is abated in any event, though not
costs. Also see State v. Blake (1977), 53 Ohio App. 2d 101.
State v. Harris (1996), 109 Ohio App. 3d
873 -- A case does not become moot when a defendant has involuntarily completed
his sentence. Trial court refused to stay sentence and defendant could not post
appeal bond. Also see Cincinnati v. Baarlaer (1996), 115 Ohio App. 3d
In re Contempt of Morris (1996), 110 Ohio
App. 3d 475 -- Appeal was not moot as contemnor was not given option of delaying
payment of fine.
State v. Carter (1997), 124 Ohio App. 3d
423, 424 -- Where issue is one capable of repetition, yet evading review an
appeal may decided in the interest of justice, even though moot and the
defendant does not want conviction and sentence disturbed.
In re Carter (1997), 123 Ohio App. 3d
532, 542 -- Reversal leading to a new trial moots an assignment of error
challenging the weight of the evidence, but not one challenging sufficiency.
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by the prosecution
State ex rel. Mason v.
Burnside, 117 Ohio St. 3d 1,
2007-Ohio-6754 – Prosecutor sought a writ of prohibition after judge ordered
police reports and witness statements turned over to the defense in a capital
case. Same materials had already been provide the defense expert, but were
beyond the scope of Crim.R. 16 discovery. Writ denied. Prosecutor had two
adequate remedies at law: (1) leave to appeal pursuant to
(2) appeal in the event there is a contempt finding for noncompliance.
Jones, 183 Ohio App. 3d 189,
2009-Ohio-2381 – Defense filed a motion for discovery and a
motion to compel discovery. The trial was set over one day when
a state‘s witness failed to appear. Discovery was finally
provided as trial was about to get underway. The court granted a
defense motion in limine as to one witness and documents
critical to the state‘s case and the state appealed.
Interlocutory appeal was in order as the state‘s case was
severely compromised so as to destroy the possibility of
Tate, 179 Ohio App. 3d 135,
2008-Ohio-5820 – State appealed trial court ruling on a
motion to suppress statements and lost. Subsequently the state
sought to have the trial court vacate its suppression order and
lost. In the majority‘s view the refusal to vacate may not be
appealed. Dissent believed a Rule 60(B) motion, via Crim. R. 57
was appropriate and might be appealable by leave of court, but
would deny leave to appeal in the circumstances of this case.
Pawelski, 178 Ohio App. 3d 426,
2008-Ohio-5180 – Defendant was found not guilty of CCW at a
bench trial because the court erroneously interpreted
4749.10 to allow security guards to carry concealed weapons.
State could not appeal as a matter of right, but properly
brought the issue up for review by first obtaining leave to
appeal, "any other decision, except the final verdict." State
wins on the legal issue but judgment is affirmed.
Sparks, 178 Ohio App. 3d 272,
2008-Ohio-4664 – Defendant serving an aggregate sentence of
twelve years for F-3‘s was granted judicial release, though he
did not qualify as an "eligible offender." Applying
State v. Cunningham, 113 Ohio St. 3d
2007-Ohio-1245 the court holds the state may not appeal as a
matter of right a modification sentence for an F-3, 4 or 5 that
is contrary to law. Dissent concludes the modified sentence was
"invalid" because "the trial court lacked statutory and inherent
authority to make the modification." Concurring judge draws the
distinction that though unauthorized; the matter was within the
court‘s subject matter jurisdiction.
Cargile, 121 Ohio St. 3d 1208,
2009-Ohio-477 – Supreme Court Rule of Practice XIV(2)(A)(3)
requires that in felony cases the prosecutor serve a copy of the
notice of appeal or certified conflict order on the Ohio Public
Defender. State P.D.‘s motion to dismiss is denied, but county
prosecutor must now make required service and the Public
Defender may file an amicus brief. Also see
State v. Lester, 121 Ohio St. 3d 1209,
2009-Ohio-478; State v. Rohrbaugh,
121 Ohio St. 3d 1210,
Owens, 123 Ohio State 3d 1204,
2009-Ohio-4086 – On motion of the Ohio Public Defender the
state‘s notice of appeal is stricken for failure to serve a copy
of the notice of appeal on the Ohio Public Defender as required
by Supreme Court Practice Rule XIV(2)(A)(3). Below the defendant
was represented by counsel and successfully had his sentence
vacated because of delay in bringing him to court for
sentencing. State v. Owens, 181 Ohio
App. 3d 725,
State v. Lomax, 96 Ohio St. 3d 318,
2002-Ohio-4453 -- Death penalty case was tried to a three judge panel which
found the defendant not guilty of a prior calculation and design count, but
guilty of a felony murder count and a
2929.04(A)(7) specification. The
specification failed to allege the defendant was the principal offender in the
commission of the predicate felony. Since the panel had found the defendant not
guilty of the prior calculation and design count, appellant was not convicted of
a death-eligible offense. Held that the prosecutor was not entitled to appeal
the denial of a post-verdict motion to amend the indictment either as a matter
of right or by leave of court. Doing so amounted to a collateral attack on the
verdict. The trial court's ruling was not a dismissal of all or part of the
indictment. Instead it was a ruling based on the language contained in the
State v. Edmondson
(2001), 92 Ohio St. 3d 393, 395-396 -- A state may seek leave to appeal
substantive law issues in a criminal case which ends in acquittal, but it may
not appeal the judgment itself. A court of appeals is not required to grant
leave to appeal in such circumstances. If the state wins, the judgment is
affirmed. If the decision is in conflict with other appellate districts, the
case may be certified to the Supreme Court. Also see State v. Burroughs,
165 Ohio App. 3d 172,
Cunningham, 113 Ohio St. 3d 108,
2007-Ohio-1245 -- The state may not appeal the modification
of a sentence granting judicial release for a third, fourth or
fifth degree felony. The court also heads off an attempt to
appeal the modification as contrary to law by finding the court
did not abuse its discretion by permitting the defendant to
reinstate an initial timely motion for judicial release though a
second motion was untimely.
State v. Lather, Ottawa App. No.
2004-Ohio-6312 -- For the state to be able to proceed after an
interlocutory appeal, "newly discovered evidence" must be just that. Newly
available is not enough. An appeal was taken when a witness took the Fifth and
the state was not allowed to play her previous statements. The prosecutor made
the certification required by Crim. R. 12(K). By the time the state lost the
appeal, the witness had been convicted and possibly could be called as a
witness. But "newly available" is not synonymous with "newly discovered."
State v. Raitz, Lucas App. No.
2003-Ohio-5687 -- The state may not appeal as a matter of right
the grant of occupational driving privileges to a person under suspension
for aggravated vehicular homicide. Leave to appeal is required. But since
the prosecutor had not been served with the judgment of the trial court in
accordance with Civil Rule 58(B), the time for seeking leave to appeal has
not yet begun to run.
In re Lee
(2001), 145 Ohio App. 3d 167 -- The prosecution may not appeal the finding
that a juvenile is not delinquent.
State v. Rogers (1996), 110 Ohio App. 3d
106 -- The prosecution may not appeal a not guilty verdict as being against the
weight of the evidence. Also see State v. Huxtable (1983), 13 Ohio App.
State v. Bistricky (1990), 51 Ohio St. 3d
157 -- Syllabus: "A court of appeals has discretionary authority pursuant to
R.C. 2945.67(A) to review substantive law rulings made in a criminal case which
result in a judgment of acquittal so long as the judgment itself is not
appealed." Also see State v. Keeton (1985), 18 Ohio St. 3d 379; State
v. Arnett (1986), 22 Ohio St. 2d 186; State v. Curry (1991), 76 Ohio
App. 3d 175.
State v. Ulrich (1983), 17 Ohio App. 3d
179 and 182 -- Even if state wins on the merits, acquittal stands. Also see
State v. Bistricky (1990), 51 Ohio St. 3d 157, 158.
State v. Dotson (1986), 31 Ohio App. 3d
199 -- Even following conviction, state may seek leave to appeal rulings on
evidentiary matters which might have a bearing on potential retrial. But see
State v. Dotson (1987), 31 Ohio App. 3d 200; State v. Birely (1986),
31 Ohio App. 3d 234.
State, ex rel. Zoller, v. Talbert (1980),
62 Ohio St. 2d 329 -- Appeal and not mandamus is prosecutor's remedy when judge
refuses to impose mandatory days of incarceration upon conviction of OMVI. Also
see State, ex rel. Cleveland, v. Calandra (1980), 62 Ohio St. 2d 121;
State, ex rel. Leis v. Outcalt
(1980), 62 Ohio St. 2d 331.
State v. Ward (1993), 85 Ohio App. 3d 537
-- Upon the defendant's inability at the time of sentencing for a traffic
offense to demonstrate financial responsibility, the court imposed the required
90 day suspension, but granted occupational driving privileges, which the state
appealed. Held that the state did not have the right to appeal as a matter of
right and was required to seek leave to appeal.
State v. Estrada (1998), 126 Ohio App. 3d
553 -- Firing a weapon into a habitation or school indictment dismissed where
premises involved was a convenience store. (1) Trial court's failure to make
findings was harmless error as it did not prejudice the state's appeal. (2)
State's failure to provide transcript or statement of evidence leads to
presumption trial court's ruling was valid.
State v. Weaver (1997), 119 Ohio App. 3d
494 -- State filed motion for leave to appeal in the trial court, not the court
of appeals. The motion was not supported by the memorandum and attachments
required by App. R. 5(A), and none of these deficiencies was ever remedied.
Appeal dismissed following oral argument, notwithstanding court previously
having granted leave to appeal.
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Criminal Rule 12(K) interlocutory appeals
Criminal Rule 12(K) -- State's Right of
Appeal Upon Granting of Motion to Return Property or Motion to Suppress Evidence
State v. Basham (2002), 94 Ohio St. 3d
269 -- Syllabus: "A motion for clarification of a final order does not affect
the time requirements for filing a notice of appeal." State failed to file an
appeal from a suppression order within the specified seven days. Subterfuge of
filing a motion for clarification later on fails. See dissent for the practical
difficulties faced when a trial court's order is unclear.
State v. Thompson, Franklin App. No.
2004-Ohio-3229 -- The state's substantive right to pursue an
interlocutory appeal is limited to the four categories listed in
and is not expanded by Criminal Rule 12(K). Rulings on routine evidentiary
matters during trial must be appealed by leave of court.
State v. Buckingham (1980), 62 Ohio St.
2d 14 -- To appeal as of right the ruling on a pretrial motion to suppress
evidence, pursuant to Criminal Rule 12(J), prosecutor must certify (1) that the
appeal is not taken for purpose of delay, and (2) the granting of the motion has
rendered the state's proof so weak in its entirety that any reasonable
possibility of effective prosecution has been destroyed. Also see State v.
Waller (1976), 47 Ohio St. 2d 52, 57; State v. Collins (1970), 24
Ohio St. 2d 107, 107-110.
State v. Malinovsky (1991), 60 Ohio St.
3d 20 -- Prosecutor may pursue appeal of an evidentiary ruling during trial,
pursuant to Crim. R. 12(J), upon certification prosecution cannot go forward
without the excluded evidence. This does not infringe upon the defendant's right
to an uninterrupted trial and where the court improperly orders the trial to
proceed, resulting in a dismissal for failure to prosecute, double jeopardy does
not bar retrial.
State v. Bertram (1997), 80 Ohio St. 3d
281 -- Syllabus: "(1) The state's appeal of a motion to suppress, made pursuant
to Crim. R. 12(J), is an appeal as of right. (2) An appellate court is without
authority to review a prosecutor's Crim. R. 12(J) certification that the
granting of a motion to suppress has rendered the state's proof with respect to
the pending charge so weak in its entirety that any reasonable possibility of
effective prosecution has been destroyed."
State v. Hollis (1994), 98 Ohio App. 3d
549, 552-553 -- Defendant was charged with promoting prostitution and cocaine
possession. Trial court granted motion to suppress which adversely affected the
cocaine charge but not the prostitution charge. Applying State v. Hayes
(1986), 25 Ohio St. 3d 173, held that state could pursue an interlocutory
State v. Adamson (1998), 83 Ohio St. 3d
248 -- The seven day time limit of Crim. R. 12(J) applies to interlocutory
appeals, not appeals from final judgments where the time limit remains 30 days.
State v. Burnette (1998), 125 Ohio App.
3d 278, 282-283 -- State's Crim. R. 12(J) appeal must be initiated within seven
days of order. In this case the rule was strictly enforced with regard to an
earlier ruling, which by itself probably did not destroy the state's case, but
contributed to that result when combined with a later ruling which was timely
State v. Fraternal Order of Eagles Aerie 0337
Buckeye (1991), 58 Ohio St. 3d 166 -- Syllabus: "Where a motion to suppress
is made and granted after the commencement of trial, a trial court shall not
proceed to enter a judgment of acquittal so as to defeat the state's right of
appeal pursuant to Crim. R. 12(J)."
State v. Burkhart (1984), 14 Ohio App. 3d
446 -- State may appeal ruling suppressing test results in an OMVI case.
State v. Fewerwerker (1985), 24 Ohio App.
3d 27 -- State may appeal ruling on a motion in limine if it is the equivalent
of a motion to suppress.
In re Hester (1982), 3 Ohio App. 3d 458
-- State may still proceed to trial after losing interlocutory appeal of
suppression issue if previous claim that reasonable possibility of effective
prosecution had been destroyed by ruling was made in good faith.
State v. Caltrider (1975), 43 Ohio St. 2d
157 -- Generally state may not pursue a second interlocutory appeal. Here claim
was that trial court had broadened its initial suppression order.
State v. Wilkinson (1996), 115 Ohio App.
3d 411 -- Whether or not the defendant's statement would have been suppressible
based on illegality of search, Crim. R. 12(J) does not allow state to now
attempt to prove case based on the statement, having already appealed the ruling
on the suppression motion.
State v. Comstock (1992), 79 Ohio App. 3d
416 -- Prosecutor took an unsuccessful appeal under Crim. R. 12(J) certification
adverse ruling on pretrial motion destroyed possibility of effective
prosecution. While speedy trial time is usually tolled during such appeals,
defendant claimed it should not be here as prosecutor testified he intended to
proceed regardless of outcome of appeal. Court found time was tolled. Though
prosecutor may have feared acquittal, probable cause was all that was required
to go forward.
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In re A.J.S., 120
Ohio St. 3d 185,
2008-Ohio-5307 – (1) Syllabus: "The order of a juvenile court denying a
motion for mandatory bindover bars the state from prosecuting a juvenile as an
adult for a criminal offense. It is therefore the functional equivalent of a
dismissal of a criminal indictment and constitutes a final order from which the
state may appeal as a matter of right." Court notes that jeopardy would attach
as soon as the juvenile court started hearing evidence to determine guilt. (2)
The court of appeals split on the standard of review. After citing
Ornelas v. United States (1996), 517 U.S. 690, 699
and State v. Fanning (1982), 1 Ohio St. 3d 19, ¶51:
"Following these lines of analysis, a juvenile court‘s probable-cause
determination in a mandatory-bindover proceeding involves questions of both fact
and law, and thus we defer to the trial court‘s determinations regarding witness
credibility, but we review de novo the legal conclusion whether the state
presented sufficient evidence to demonstrate probable cause to believe that the
juvenile committed the acts charged."
H.F., 120 Ohio St. 3d 499,
2008-Ohio-6810 – Syllabus: "An appeal of an adjudication
order of abuse, dependency, or neglect and the award of
temporary custody pursuant to
R.C. 2151.353(A)(2) must be filed within 30 days of the
judgment entry pursuant to App. R. 4(A)." Parent sought to raise
an assignment of error pertaining to the initial proceedings
which resulted in an award of temporary custody in an appeal
from the order granting permanent custody. Reverses
In re H.F., 176 Ohio App. 3d 106,
Weaver, 179 Ohio App. 3d 792,
2008-Ohio-6189 – Court had before it rival custody motions
for legal custody. Temporary custody was granted father.
Grandmother appealed. Appeal dismissed. Citing
In re Adams, 115 Ohio St. 3d 86,
2007-Ohio-4840 the court finds temporary custody awards do
not fully determine the action.
In re S.J., 106 Ohio St. 3d 11,
2005-Ohio-3215 -- Juvenile court did not find probable cause in support of bindover. Prosecutor appealed. Juvenile admitted delinquency. Syllabus: "(1) A
juvenile court lacks jurisdiction to proceed with an adjudication of a child
after a notice of appeal has been filed from an order of that court. (2) During
the pendency of an appeal, any adjudication of a child made by a juvenile court
is void. Therefore the Double Jeopardy Clause of the United States Constitution
does not apply, and the court of appeals may review the merits of the appeal."
In re Stanley, 165 Ohio App. 3d 726,
2006-Ohio-1279 -- Juvenile court rejected bindover motions because the offenses
charged did not qualify for mandatory bindover. The court erred by not
considering discretionary bindover. But in one case the state dismissed charges
before filing a notice of appeal, meaning there was no final appealable order.
In re A.C., 160 Ohio App. 3d 457,
2005-Ohio-1742 -- In a neglect/dependency/abuse case a notice of appeal is
timely either within thirty days of the adjudicatory ruling or within thirty
days of the final dispositional order. If the notice of appeal is filed after
final disposition, matters pertaining to adjudication may, in the court's
discretion, be raised even if the judgment entry from that phase of proceedings
is not attached to the notice of appeal. On the ultimate issue of Rule 29
noncompliance, a motion to withdraw the admission was not required to preserve
the issue for appeal.
In re Anderson
(2001), 92 Ohio St. 3d 63 -- Syllabus: "A juvenile court proceeding is a civil
proceeding." Thus delayed appeals pursuant to App. R. 5(A) are not available.
However, the saving provision of App. R. 4(A) applies, extending the time for
filing the notice of appeal when service of the judgment entry is not made upon
the parties within three days as required by Civ. R. 58. Compare In re Cross,
96 Ohio St. 3d 328,332,
2002-Ohio-4183 ¶21: While juvenile court proceedings may
generally be categorized as civil, there are criminal aspects that require
adherence to the requirements of due process; State v. Walls, 96 Ohio St.
2002-Ohio-5059 ¶ 25. Note that App. R. 5(A) has been amended to permit
delayed appeals in delinquency and serious youthful offender proceedings.
In re Amos, 154 Ohio App. 3d 434,
2003-Ohio-5014 -- The failure to make a record of proceedings as required by
Juv. R. 37(A) is an abuse of discretion requiring reversal where it has been
impossible to prepare a transcript for appellate review.
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R.C. 2953.09 -- Suspension of sentence in
criminal cases; bail
Appellate Rule 8 -- Bail and Suspension of
Execution of Sentence in Criminal Cases
Criminal Rule 46 -- Bail
Leis, 165 Ohio App. 3d 581,
2006-Ohio-450 -- After the court of appeals reversed the
defendant's conviction based on an incorrect ruling on a motion
to suppress evidence the trial court set a "$500,000, no 10%"
bond pending the state's effort to take the case to the Supreme
Court. Court concludes defendant was entitled to release on
recognizance. Opinion provides a primmer on excessive bail
habeas actions. Sheriff's appeal dismissed as moot since the
defendant had been released and no charges were pending.
Smith v. Leis, 111 Ohio St. 3d 493,
2006-Ohio-6113. Related case: State v.
Smith, 163 Ohio App. 3d 567,
Coleman v. McGettrick (1965), 2 Ohio St.
2d 177 -- The constitutional right to bail does not extend to bail after
conviction. Release on bond pending appeal depends on statutory authority (or
rules). Also see In re Thorpe (1936), 132 Ohio St. 119; Dapice v.
Stickrath (1988), 40 Ohio St. 3d 298; Christopher v. McFaul
18 Ohio St. 3d 233.
State, ex rel. Silcott, v. Spahr (1990),
50 Ohio St. 3d 110 -- Appellate Rule 8 and Criminal Rule 46 control over
2949.02 and 2953.09 as to who may be admitted to bond pending appeal.
Liberatore v. McKeen (1980), 63 Ohio St.
2d 175 -- Balancing factors for and against the setting of an appeal bond, trial
and appellate courts were found to have abused their discretion in refusing to
do so. Compare Jurek v. McFaul
(1988), 39 Ohio St. 3d 42.
State v. Aspell (1966), 5 Ohio App. 2d
230 -- If the effect of a reversal by the Court of Appeals is that the defendant
is to be discharged, it is incumbent upon the state to seek a stay from the
Supreme Court if there is to be a further appeal.
Burch v. Perini (1981), 66 Ohio St. 2d
174 -- Reversal and remand to lower court does not require immediate release
pending disposition of case.
State ex rel. Pirman v. Money (1994), 69
Ohio St. 3d 591 -- (1) Habeas corpus and not mandamus is the proper vehicle for
challenging excessive bail or refusal to set bail after a judgment of
conviction. (2) A no contact provision included by the court of appeals in an
appeal bond was not improper.
Brown v. Rogers (1995), 72 Ohio St. 3d
339 -- A habeas petition alleging a refusal to set an appeal bond must have
attached copies of the entries or orders of the trial or appellate courts
State v. Plotnick (November 7, 1985),
Franklin Co. App. No. 85AP-325, unreported (1985 Opinions 3283) -- Once the
appeal as of right has been determined, the trial court may not extend an appeal
bond beyond the thirty days
R.C. 2949.03 allows to file a notice of appeal to
the Supreme Court. Various provisions construed to prevent appeal bond during
second appeal from ruling on motion for a new trial base upon newly discovered
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Preservation of the record
Rules of Evidence/Evidence Rule 103 -- Rulings on Evidence
Aurora v. Bellinger,
180 Ohio App. 3d 178,
2008-Ohio-6772 -- OMVI conviction reversed without addressing the
assignments of error because the trial judge persistently refused to upgrade
courtroom recording equipment and blew off remands for settlement of the record
pursuant to App. R. 9(c).
In re Holmes, 104 Ohio St. 3d 664,
2004-Ohio-7109 -- After argument, the court of appeals overruled the assignments
of error because various exhibits had been omitted from the record on appeal.
Reversed. Transmission of a complete record was the duty of the clerk, and
counsel for appellant did not have "the legal duty to stand over the clerk's
shoulder to ensure that all the exhibits were filed." The court of appeals
should have used App. R. 9(E) to correct an imperfect trial court record.
In re B.E., 102 Ohio St 3d 388,
2004-Ohio-3361 -- Syllabus: "When a juvenile court fails to comply with the
recording requirements of Juv.R. 37(A) and an appellant attempts but is unable
to submit an App.R. 9(C) statement to correct or supplement the record, the
matter must be remanded to the juvenile court for a rehearing." See dissent for
an outline of prudent procedure in securing a 9(C) statement.
In re Edgerson (2001), 144 Ohio App. 3d
113 -- Tapes of juvenile court termination of parental rights hearing were
unavailable. Appellant mother had missed the hearing. Case was remanded to the
trial court with an order to settle the record. Trial court adopted an App. R.
9(C) statement prepared by appellee. Reversed. App. R. 9(C) statements may only
be prepared by an appellant. Motion to strike the titular App. R. 9(C) statement
should have been sustained. See State v. Mock, 136 Ohio Misc. 2d 21,
2005-Ohio-7142 for the proposition that the common pleas court may proceed to
trial even when the bindover record has been lost and cannot be created under
App. R. 9(C).
State v. Wood
(2001), 141 Ohio App. 3d 634, 637 -- No contest plea was entered after the
court ruled against the defense on a claim of privilege. Held to be an
evidentiary issue capable of determination without trial of the general
issue, and thus appealable.
State v. Whitmore, Hamilton App. No. 2003
2003-Ohio-4088, ¶ 5 -- "A direct appeal is not an appropriate mechanism
for determining whether the trial court properly determined that the transcript
is complete. Such a determination would require fact finding, which can only be
accomplished in an original action for mandamus. While App. R. 9(E) might have
some application were an appeal from the judgment of conviction pending in this
court, such is not the case..."
State v. Skimmerhorn, 162 Ohio App. 3d
2005-Ohio-4300, ¶7-11 -- Issue on appeal was the admissibility of a an
exhibit that was not admitted and was not proffered for the record at trial. It
was proffered and accepted by the trial court three months later. The timing of
a proffer is of minimal importance and defense counsel did not object. The
document was properly before the appellate court.
State v. Davis (1964), 1 Ohio St. 2d 28
-- Trial counsel must state the specific basis of objection to preserve issue
State v. Awan (1986), 22 Ohio St. 3d 120
-- Syllabus: "Failure to raise at the trial court level the issue of the
constitutionality of a statute or its application, which issue is apparent at
the time of trial, constitutes a waiver of such issue and a deviation from this
state's orderly procedure, and therefore need not be heard for the first time on
State v. Luna (1982), 2 Ohio St. 3d 57 --
Negotiated no contest plea preserves the defendant's right to appeal ruling on
State v. Engle (1996), 74 Ohio St. 3d 525
-- No contest plea was entered after court overruled Rule 29 motion for
acquittal and motions in limine. It was the mistaken understanding of the judge,
prosecutor and defense attorney that those rulings could be appealed following a
no contest plea. Plea held not to have been entered knowingly or intelligently.
Also see State v. Amburgey
(1993), 86 Ohio App. 3d 635.
Columbus v. Sullivan (1982), 4 Ohio App.
3d 7 -- No contest plea does not preserve right to appeal court's ruling on
pretrial determination whether proposed evidence is material and relevant.
Compare Chillicothe v. Knight (1992), 75 Ohio App.3d 544, 548-549 where
the object was access to police reports and not merely a ruling as to their
State v. Williams (1977), 51 Ohio St. 2d
112 -- An appellate court need not consider an error which could have been
called to the attention of the trial court at a time when it could have been
avoided or corrected. Also see State v. Glaros (1960), 170 Ohio St. 471;
State v. Awan (1986), 22 Ohio St. 3d 120, 122; State v. Childs
(1968), 14 Ohio St. 2d 56; 1981 Dodge Ram Van (1988), 36 Ohio St. 3d 168.
State v. Price (1979), 60 Ohio St. 2d 136
-- Paragraph three of the syllabus: "The Supreme Court will not ordinarily
consider a claim of error that was not raised in any way in the Court of Appeals
and was not considered or decided by that court. (Toledo v. Reasonover, 5
Ohio St. 2d 22, approved and followed.)
State v. White (1982), 6 Ohio App. 3d 1
-- Ruling on a motion in limine is tentative, presumptive and preliminary and
subject matter must generally be addressed again at the appropriate point during
the trial. Also see State v. Leslie (1984), 14 Ohio App. 3d 343.
State v. Ulis (1992), 65 Ohio St. 3d 83
-- Motions to suppress are not limited to constitutional issues. Since the
criminal rules favor determination of evidentiary matters before trial where
possible, the ruling on a motion to keep out testimony of a prosecution witness
was improperly construed as a motion in limine, requiring renewed objection when
the witness was called at trial. The full blown pretrial hearing was sufficient
to preserve the issue for review.
Knapp v. Edwards Laboratories (1980), 61
Ohio St. 2d 197 -- It is the duty of the appellant to furnish the transcript of
the proceedings needed for appellate review. While there are alternative means
of producing a record, absent a transcript, the ultimate failure to produce a
transcript or adequate record means that the reviewing court must presume the
validity of proceedings in the lower court. Also see Parma v. Manning
(1986), 33 Ohio App. 3d 67; State v. Gray (1993), 85 Ohio App. 3d 165,
State v. Ishmail (1978), 54 Ohio St. 2d
402 -- Paragraph one of the syllabus: "A reviewing court cannot add matter to
the record before it, which was not a part of the trial court's proceedings, and
then decide the appeal on the basis of the new matter." Also see State v.
Phillips (1995), 74 Ohio St. 3d 72, 80.
State v. Palmer (1997), 80 Ohio St. 3d
543 -- Syllabus: "The requirement of a complete, full, and unabridged transcript
in capital trials does not mean that the trial record must be perfect for
purposes of appellate review."
State v. Keenan (1998), 81 Ohio St. 3d
133, 139 -- In a death penalty trial, court denied pretrial motion to record all
sidebars. Error held waived because no attempt was made to use App. R. 9 to
reconstruct the record and show prejudice.
State v. Williams (1995), 73 Ohio St. 3d
152, 160-162 -- In a death penalty case, the court rejects efforts to broadly
supplement the record with materials not before the trial court and not sought
to be added when the case was before the court of appeals.
State v. Jones (1994), 71 Ohio St 3d 293
-- (1) A criminal defendant must suffer the consequences of nonproduction of an
appellate record where nonproduction is caused by his or her own actions. If
not, and a settled record cannot be produced pursuant to App. R. 9, the trial
court may grant a new trial. (2) Article IV, Sec. 3(B)(1)(f) of the Ohio
Constitution (original jurisdiction in "...any cause on review as may be
necessary to its complete determination) does not confer upon the court of
appeals authority to grant a motion to a new trial.
State v. Nobles (1995), 106 Ohio App. 3d
246, 268-269 -- Judge refused to have all sidebar conferences put on the record.
No reversal as counsel failed to supply gaps in the record through Appellant
Rule 9(C) or (E), and context does not suggest reversible error was hidden in
In re Hannah (1995), 106 Ohio App. 3d 766
-- It was not a denial of due process or equal protection, or ineffective
assistance of counsel, not to record an admission hearing in juvenile court.
Juv. R. 37 requires recordation only upon request.
State ex rel. Hill v. Niehaus (1994), 68
Ohio St. 3d 507 -- The trial court may resolve disputes and correct factual
issues in a trial record, including disputes over when a verdict form was filed
or the effect of a document's being filed late. The injured party's remedy lies
in appeal rather than mandamus: "As do all counsel, counsel representing
criminal defendants have an obligation not to file separate and multiplictious
lawsuits when issues can be resolved in pending litigation."
Tallmadge v. Gang (1994), 97 Ohio App. 3d
56 -- Appellant city failed to submit a motion to supplement the record with a
transcript of proceedings. As a result, the appeals court disregards portions of
the city's brief referring to the transcript, and the appeal taken by the city
State v. Burrell (1993), 89 Ohio App. 3d
737, 741 -- Though counsel failed to object at the time testimony was received,
a subsequent motion to strike preserved the issue for purposes of appeal as
trial court would still have had an opportunity to take remedial action.
State v. Gleason (1996), 110 Ohio App. 3d
240, 248 -- Where the verdict form failed to include a finding establishing a
higher degree of the offense, defense counsel's failure to object to verdict
form or instructions did not waive error. Obligation to make timely objection
applies only to matters which prejudice the defendant.
State v. Smith (1993), 87 Ohio App. 3d
480 -- Failure to include a copy of written instructions, which were supposedly
given to the jury but were not read aloud at the end of the trial, was a
violation of due process in that the defendant was foreclosed from appellate
State v. Hammer (1992), 82 Ohio App. 3d
663 -- Failure to have relevant portion of videotape "transcript" transcribed
and attached to brief prevents review of issue. App. R. 9(A), applied. Also see
State v. Evans (1994), 93 Ohio App. 3d 121. (Codefendant's confession
reviewed before sentence was passed.)
In re Collins (1998), 127 Ohio App. 3d
278 -- Failure to record hearing before juvenile court magistrate, as required
by Juv. R. 37(A), leads to reversal and remand for a new adjudicatory hearing.
Only record of proceedings were fill in the blank forms.
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State v. Chessman, 161 Ohio App. 3d
2005-Ohio-2511 -- Anders equates a frivolous appeal with one lacking
arguable merit. The possibilities that the prosecutor will have a strong
response or that the defendant may not ultimately prevail do not mean an issue
lacks arguable merit. An issue lacks arguable merit only if on the facts and law
involved no reasonable contention can be made that there is a basis for
State v. Westfall (1976), 46 Ohio St. 2d
31 -- For an inmate not represented by counsel, the deadline for filing a notice
of appeal is met by delivery to prison authorities for forwarding to the
appropriate court. A (1967), 10 Ohio St. 2d
State v. Herzing (1985), 18 Ohio St. 3d
337 -- Syllabus: "A court of appeals may not dismiss, sua sponte, an
appeal based upon a defect in the mode of service of an appellant's brief, when
said brief was otherwise timely filed before the appellate court..."
Penson v. Ohio (1988), 488 U.S. 75 -- If
appellate counsel believes there are no issues of merit, brief must be filed
pointing out anything which might arguably support the appeal and court must
make independent assessment of the record before dismissing the appeal. See
Anders v. California (1967), 386 U.S. 738.
Smith v. Robbinsclas (2000), 120 S.Ct. 746 --
The procedure spelled out in
Anders v. California (1967), 386 U.S. 738 is
merely one method of satisfying the requirements of the constitution for
indigent criminal appeals. States may adopt alternative. California procedure
allows counsel to remain silent as to the merits of the case.
Ziegler v. Wendel Poultry
Ziegler v. Wendel Poultry
Inc. (1993), 67 Ohio St. 3d 10, 22 -- Court (entirely composed of
substitute judges) finds page limitation in a civil case did not amount to a
denial of due process.
State v. Gillard (1997), 78 Ohio St. 3d
548 -- The Supreme Court may remand a case to the trial court for a further
hearing on specific issues, while retaining jurisdiction. In such circumstances,
there is no right of appeal to the intermediate appellate court.
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Procedure in no merit cases
Allen County Bar Association v. Williams
(2001), 92 Ohio St. 3d 104 -- Six month suspended suspension for attorney
who voluntarily dismissed an appeal without proper consultation with client.
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State v. Lester,
123 Ohio St. 3d 396,
2009-Ohio-4225, ¶31 – A summary remand decision by the Supreme Court does
not settle unaddressed issues for future cases.
v. Voorhies, 119 Ohio St. 3d 398,
2008-Ohio-4787 -- "A reviewing court will not reverse a
correct judgment even if the lower court‘s reasons were
erroneous." Followed: McCuller v. Hudson,
121 Ohio St. 3d 168,
Obasohan, Franklin App. No. 07AP-297,
2008-Ohio-797, ¶23 -- "Error in the admission or exclusion
of evidence in a criminal trial must be considered prejudicial
unless the court can declare, beyond a reasonable doubt, that
the error was harmless, and unless there is no reasonable
possibility that the evidence, or the exclusion of evidence, may
have contributed to the accused‘s conviction." Citing
State v. Bayless (1976), 48 Ohio
St.2d 73, 106, vacated in part on other grounds (1978), 438 U.S.
911. Also see State v. Conway, 108
Ohio St. 3d 214,
State v. Hill, 160 Ohio App. 3d 324,
2005-Ohio-1501, ¶29 -- "New rules of criminal procedure that expand the rights
of the accused always have retroactive application to criminal cases pending on
Westfield Insurance Co. v. Galatis, 100
Ohio St. 3d 216,
2003-Ohio-5849 -- Paragraph one of the syllabus: "A prior
decision of the Supreme Court may be overruled where (1) the decision was
wrongly decided at that time, or
changes in circumstances no longer justify continued adherence to the decision,
(2) the decision defies practical workability, and (3) abandoning the precedent
would not create an undue hardship for those who have relied upon it."
State ex rel. Van Dyke v. Public Employee
Retirement Board, 99 Ohio St. 3d 430,
2003-Ohio-4123, -- (1) ¶ 38: The
Supreme Court will not reverse a court of appeals judgment based on the
appellate court's erroneous rationale. Citing Phillips v. Irwin, 96 Ohio
St. 3d 350,
2002-Ohio-4758, ¶ 5, and Johnson v. Timmerman-Cooper
(2001), 93 Ohio St. 3d 614, 616. (2) ¶ 41-42: A reviewing court need not address
constitutional claims not raised by complaint or amended complaint, and the
opposing party did not expressly or impliedly consent to litigation of those
claims. Also see State ex rel. Miller v. Reed (1999), 87 Ohio St. 3d 159,
In re Malone, Franklin App. No.
2003-Ohio-7156, ¶ 38 -- The appellant must present his or her
contentions with respect to each assignment of error and the reasons in support
of those contentions. It is not the duty of a reviewing court to search the
record for evidence to support an appellant's argument as to assigned error.
State ex rel. Carter v. Schotten, 70 Ohio
St. 3d 89, 92,
1994-Ohio-37 -- "...(A) reviewing court is not authorized to
reverse a correct judgment merely because erroneous reasons were assigned as a
basis thereof." Also see State ex rel. Cassels v. Dayton City School
District Board of Education (1994), 69 Ohio St. 3d 217, 222; Myers v.
Garson (1993), 66 Ohio St. 3d 610, 614; State v. Featherstone, 150
Ohio App. 3d 24,
State v. South, 162 Ohio App. 3d 123,
2005-Ohio-2152, ¶13 -- As to the claimed failure to demonstrate withheld
evidence would have proven innocence: "After our initial bewilderment, we
question whether the state is facetious in advancing this Alice-in-Wonderland
argument. The tautology is too obvious: the defendant has not justified his
right to a copy of the videotape upon which he might experiment in search of
exculpatory evidence because he has not already proven that the experiment would
produce exculpatory evidence. The argument proves nothing but that the defendant
has conducted no experiment on a tape he does not have. The repetitive and
circular argument is dizzying."
North Olmstead v. North Olmstead Land
Holdings, Ltd. (2000), 137 Ohio App. 3d 1, 6 -- The constitutionality of
a statute should not be addressed where the record presents some other
ground upon which the court may base its decision. Also see Department of
Commerce v. United States House of Representatives (1999), 119 S.Ct.
765; Ashwander v. Tennessee Valley Authority (1936), 207 U.S. 288.
Accordingly, a municipal ordinance under constitutional attack should
initially be afforded the presumption of constitutionality, and the court
should consider nonconstitutional issues raised by a motion to dismiss.
State v. McKee
(2001), 91 Ohio St. 3d 293 -- (1) At p. 294 when conviction rests solely on
challenged testimony, plain error analysis is appropriate. (2) At p. 298 --
"When evidence of an element of the crime charged is deemed insufficient on
appeal, the conviction must be reversed."
State v. Madrigal
(2000), 87 Ohio St. 3d 378, 397 -- Errors which may be harmless considered
separately may violate a defendant's right to a fair trial when considered
together. Also see State v. Durnwald, 163 Ohio App. 3d 361,
2005-Ohio-4867, ¶57-60 where this is applied even though three errors had not
individually been declared harmless.
Ornelas v. United States (1996), 517 U.S.
690 -- The determination of reasonable suspicion or probable cause for purposes
of passing on the validity of a warrantless search is a mixed question of fact
and law, to be reviewed de novo by an appellate court, without the
deference to the findings of the trial court called for when pure questions of
fact are involved. Also see Thompson v. Keohane (1995), 516 U.S. 99 --
Issue of custody for Miranda
purposes is a subject for independent review by an appellate court; State v.
Gillard (1997), 78 Ohio St. 3d 548, 552 -- Existence of a conflict of
interest is a mixed question of fact and law.
State v. Sufronko (1995), 105 Ohio App.
3d 504, 506 -- "When interpreting statutes and their application, an appellate
court conducts a de novo
review, without deference to the trial court's determination."
United States v. Angiulo (1st Cir. 1990),
897 F. 2d 1169, 1196 --A conviction cannot be sustained on a theory the jury was
not instructed on. If an erroneous instruction was given (presumably one
beneficial to the defendant), it remains the law of the case for purposes of
weighing the sufficiency of the evidence.
State v. Hamilton (1991), 77 Ohio App. 3d
293, 300 -- "With all due respect to the various trial judges who sit as the
trier of fact in countless cases each year, the fact that a defendant forgoes a
jury trial is hardly an excuse to give free reign to admit any and all evidence
on the principle that the trial court will separate the wheat from the
chaff...By agreeing to have the trial courts sit as the trier of fact, the
defendant does not waive his right to have only relevant evidence submitted to
the trier of fact."
State v. Brown (1995), 101 Ohio App. 3d
784, 787 -- "...(I)n a trial to the bench it is presumed that the court
'considered only relevant, material, and competent evidence in arriving at its
judgment unless it affirmatively appears to the contrary.'" [Citing State v.
White (1968), 15 Ohio St. 2d 146, 151.]
State v. Peagler (1996), 76 Ohio St. 3d
496 -- Paragraph one of the syllabus: "While an appellate court may decide an
issue on grounds different from those determined by the trial court, the
evidentiary basis upon which the court of appeals decides a legal issue must
have been adduced before the trial court and have been made a part of the record
thereof." Also see State v. Owen
(1996), 114 Ohio App. 3d 226.
State v. Lowe (1994), 69 Ohio St. 3d 527
-- Paragraph two of the Syllabus: "The standard of appellate review in midtrial
appeals is the same as that in post-trial appeals."
State v. Brown (1992), 65 Ohio St. 3d 483
-- Where evidence seized as the result of an illegal inventory search could not
reasonably have contributed to conviction, error in admission is harmless beyond
a reasonable doubt. See dissent as to danger of overly broad application of the
harmless error rule.
State v. Hirtzinger (1997), 124 Ohio App.
3d 40, 50 -- "When a court admits hearsay beyond the dictates of Evid. R. 802,
the standard of review is a strict one. 'In the final analysis, the evidence in
favor of conviction, absent the hearsay, must be so overwhelming that the
admission of those statements was harmless beyond a reasonable doubt.' State
v. Kidder (1987), 32 Ohio St. 3d 279, 284..."
State v. Wernet (1996), 108 Ohio App. 3d
737, 745 -- "There is, however, a synergistic relationship between the degree of
the error and the quantum of other evidence against the defendant in applying a
harmless error analysis. Relatively minor trial errors are harmless as long as
there is overwhelming evidence of guilt from other sources."
State v. Jenkins (1984), 15 Ohio St. 3d
164, 222 -- "'(A)n abuse of discretion involves far more than a difference in
*** opinion ***. The term discretion itself involves the idea of choice, of an
exercise of the will, of a determination made between competing considerations.
In order to have an "abuse" in reaching such determination, the result must be
so palpably and grossly violative of fact and logic that it evidences not the
exercise of will but perversity of will, not the exercise of judgment but
defiance thereof, not the exercise of reason but rather of passion or bias.'"
(Citing Spaulding v. Spaulding , 355 Mich. 382, 384-385, 94 N.W. 2d
State v. Echols (1998), 128 Ohio App. 3d
677, 699-700 -- Abuse of discretion is an unfortunate term because the common
meaning of abuse implies corrupt practice, deceit or impropriety. It would be
better to draw a distinction between those situations where the decision is best
made by the jurist weighing conflicting procedural, factual or equitable
considerations which vary from case to case, and those situations where the
facts or inferences from them are not in dispute and there are few or no
conflicting procedural, factual or equitable considerations. Citing State v.
Chapple, 660 P.2d at 1224, fn. 18.
Toledo Great E. Shoppers City, Inc. v. Abde's
Black Angus Steak House No. 111
(1986), 24 Ohio St. 3d 198, 203 -- An appellate court may rule upon errors
neither assigned nor briefed. Also see State v. Gunther (1998), 125 Ohio
App. 3d 226, 236.
United States v. Olano (1993), 507 U.S.
725 -- Failure of attorneys to speak up when afforded an opportunity to speak as
to an erroneous procedure created a "forfeited error," which under F. R. Crim.
P. 52(b) did not require
Sullivan v. Louisiana (1993), 508 U.S.
275 -- Harmless error analysis may not be applied to structural defects in the
constitution of the trial mechanism. Also see Arizona v. Fulminante
(1991), 499 U.S. 279; State v. Gunther
(1998), 125 Ohio App. 3d 226, 237-238.
Chapman v. California (1967), 386 U.S.
18, 24 -- "...(B)efore a federal constitutional error can be held harmless, the
court must be able to declare a belief that it was harmless beyond a reasonable
California v. Roy (1996), 519 U.S. 2 --
Opinion delineates distinctions among the strict harmless error standard of
Chapman (harmless beyond a reasonable doubt), the less demanding
Kotteakos standard applied in federal habeas review (substantial or
injurious effect or influence in determining the jury's verdict), and structural
errors which defy harmless error analysis.
State v. Garner (1995), 74 Ohio St. 3d
49, 64 -- "...(A) conviction will be reversed where the cumulative effect of
errors in a trial deprives a defendant of the constitutional right to a fair
trial even though each of numerous instances of trial court error does not
individually constitute cause for reversal." Also see State v. DeMarco
(1987), 31 Ohio St. 3d 191, paragraph two of the syllabus.
Goldfuss v. Davidson (1997), 79 Ohio St.
3d 116 -- The plain error doctrine is not favored in civil cases, and may be
applied only when the legitimacy of the judicial process is placed in doubt.
Sidney v. Walters (1997), 118 Ohio App.
3d 825 -- Defendant claimed prosecutorial misconduct. Prosecutor did not file a
brief. Court applies App. R. 18(C), accepting defendant's arguments and
reversing. Concurring judge says claims had merit.
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Plain error; Structural error
Puckett v. United States
(2009), 129 S.Ct. 1423 – The federal standard for plain error review has four
prongs: (1) There must be an error the defendant has not affirmatively waived.
(2) The error must be clear or obvious. (3) It must have affected the
defendant‘s substantial rights. (4) Remedy is at the discretion of the appellate
court if the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.
Cihonski, 178 Ohio App. 3d 713,
2008-Ohio-5191 – ¶19: "… (T)o find structural error, a court
must (1) determine that a constitutional error has occurred, (2)
conduct analysis under the presumption that the error is not
structural, and (3) determine that the constitutional error has
permeated the entire trial, rendering it unable to serve as a
'vehicle' for determination of the defendant‘s guilt or
innocence." Failure to notify the jury that the defendant had
entered a plea of not guilty by reason of insanity and to
instruct the jury on that plea constituted structural error.
Plea was entered but apparently forgotten. Defendant was found
competent to stand trial, but such finding does not preclude a
jury finding insanity Failure to bring insanity to the attention
of the jury denied appellant his constitutional right to trial
by jury. Evidence was such as might provide a basis for finding
United States v. Gonzalez-Lopez (2006),
126 S.Ct. 2557 -- Missouri federal court refused to admit counsel of choice pro
hac vice based on a misinterpretation of a court rule. Initially hired counsel
and counsel of choice squabbled and ultimately the defendant was represented at
trial by a different attorney. Denial of representation by counsel of choice was
structural error. Defendant does not have to show new counsel was ineffective.
The right to counsel of choice looks to the accused's belief who can best
represent him, not the ultimate fairness of the trial. Because the consequences
cannot be calculated with any precision, harmless error analysis would be
Payne, 114 Ohio St. 3d 502,
2007-Ohio-4642 -- Failure to object to a sentence as
violating Blakely v. Washington
forfeits that issue on appeal. Blakely error is not structural
error. Opinion distinguishes forfeiture of issues from waiver
and void sentences from those that are voidable.
State v. Perry, 101 Ohio St. 3d 118,
2004-Ohio-297 -- If there has been an objection, and if error is demonstrated,
the prosecution bears the burden of proving it is harmless. If there has been no
objection, the defense must demonstrate both error and that substantial rights
were affected. Structural errors defy harmless error analysis because they
involve constitutional defects affecting the framework within which trial
proceeds. Caution should be used applying structural error analysis when there
has been no objection, in order not to encourage and reward inaction.
State v. Hill
(2001), 92 Ohio St. 3d 191 -- (1) Syllabus: "When a court of appeals engages
in a plain-error analysis, it must conduct a complete review of all relevant
assignments of error in order to determine whether a manifest miscarriage of
justice has occurred that clearly affected the outcome of the trial."
Syllabus pertains to plain error reversal by the court of appeals based on a
Doyle v. Ohio (1976), 426 U.S. 610 violation. Cause remanded for the
court of appeals to consider assignments of error previously deemed moot.
(2) Also reverses State v. Hill (2000), 136 Ohio App. 3d 636 which
held that adherence to a local rule imposing the anonymous jury system in
all cases requires reversal, since though counsel did not object, the error
is structural, and thus not subject to plain error analysis. The Supreme
Court finds the error, if any, not to be structural.
State v. Sanders
(2001), 93 Ohio St. 3d 245, 278 -- "The presence of a biased judge on the
bench is, of course, a paradigmatic example of structural constitutional
error, which if shown requires reversal without resort to harmless-error
State v. Barnes
(2002), 94 Ohio St. 3d 21, 25-28 -- Supreme Court holds felonious assault by
means of a deadly weapon is not a lesser included offense to attempted
murder, but refuses to reverse as plain error: Since it had not decided the
issue before, it was not plain and did not have to be corrected.
State v. Gross, 97 Ohio St. 3d 121,
2002-Ohio-5524, ¶ 45 -- For there to be plain error: (1) There must be an error,
meaning a deviation from a legal rule; (2) The error must be plain, meaning an
obvious defect in the trial proceedings; and (3) The error must have affected
the outcome of the trial. (Citing State v. Barnes
(2002), 94 Ohio St. 3d 21, 27.)
United States v. Cotton
(2002), 122 S.St. 1781 -- Under Federal Criminal Rule 52(B) plain error reversal
requires (1) an error, (2) that is plain, (3) affects substantial rights, and
(4) the error seriously affects the fairness, integrity or public reputation of
In re Etter
(1998), 134 Ohio App. 3d 484 -- Though the plain error doctrine is generally not
favored in civil cases, it may be applied in cases involving error which
seriously affect the basic fairness, integrity of the judicial process. Error
leading to reversal had not been the subject of objections in juvenile
proceedings before a magistrate. Also see State v. Murray, Montgomery
App. No. 2002-CA-10,
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Application for reconsideration
State v. Latham, Lucas App. No.
2005-Ohio-321 -- App. R. 26(A) motion for reconsideration granted. An
Anders brief was filed, but the case presents a Blakely claim.
Issue at this stage is whether the proposed assignment of error is frivolous,
not the merits.
Matthews v. Matthews (1981), 5 Ohio App.
3d 140, 143 -- "The test generally applied [in App. R. 26(A) motions] is whether
the motion for reconsideration calls to the attention of the court an obvious
error in its decision or raises an issue for our consideration that was either
not considered at all or was not fully considered by us when it should have
State v. Owens (1996), 112 Ohio App. 3d
334 -- Court responds to an apparently obtuse and insulting motion for
reconsideration by using uncharacteristically dense language, chiding counsel
for repeating arguments already made, then quoting a Polish proverb (without
providing a translation) to the effect that if you stay on the trail in the
Carpathian Mountains, you won't fall off.
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State v. Hartikainen
(2000), 137 Ohio App. 3d 421 -- Trial court granted a motion to suppress.
Clerk did not notify prosecutor judgment entry had been filed until after
the expiration of the seven days allowed to initiate an appeal as of right.
(1) Delayed appeals are only available to defendants in criminal cases. (2)
The state, not being a legal person has no standing to assert due process or
equal protection. (3) There is no rule or statute requiring service of
judgment entries on prosecutors.
State v. Cromlish (September 1, 1994),
Franklin Co. App. Nos. 94APA06-855, 856, 857, unreported (1994 Opinions 3972,
3974) -- "While the newly amended App. R. 5(A) has relieved any party seeking
leave to file a delayed appeal from submitting a brief or memorandum to show the
probability that claimed errors did in fact occur, the rule does not relieve the
moving party from demonstrating a reasonable explanation of the basis for
failure to perfect a timely appeal."
State v. Sims (1971), 27 Ohio St. 2d 79
-- Syllabus: "In the absence of evidence in the record upon which it could be
determined that an indigent convicted defendant knowingly and intelligently
waived his right to court-appointed counsel for direct appeal prior to the
expiration of the time in which such an appeal could be taken, a Court of
Appeals must make such a factual determination before it dismisses a motion for
leave to appeal."
State v. Gentry (1983), 10 Ohio App. 3d
227 -- When an indigent inmate seeks delayed appeal and appointment of counsel
and represents that lack of money and attorney were reasons for not perfecting a
direct appeal, court should appoint counsel even if defendant has not fully
complied with App. R. 5(A).
State v. Boone (1996), 114 Ohio App. 3d
275 -- Court overruled motion for leave to file a delayed appeal filed pro
se fourteen months after guilty plea. Res judicata said to bar second
attempt to obtain a delayed appeal. Murnahan
doesn't apply since was acting pro se.
State v. Gover (1995), 71 Ohio App. 3d
577 -- Attorney appointed to handle an appeal was never notified by the trial
court. Ten months later the defendant unsuccessfully sought a delayed appeal.
Following this, the state P.D. entered the case and sought delayed
reconsideration pursuant to App. R. 26. (1) App. R. 26 is not available in these
circumstances. (2) Postconviction is the proper remedy and relief almost
certainly should be granted. The trial court should reenter its judgment, thus
permitting an appeal as of right to be filed. (3) The court of appeals denial of
leave to pursue a delayed appeal was "doubtful at best."
State v. Robinson (1995), 101 Ohio App.
3d 238 -- Court notes that under the amended version of App. R. 5(A) it may
always be required to grant leave to appeal when a defendant has pleaded guilty
and thus been left without counsel for purposes of pursuing an appeal. Also see
State v. Borchers (1995), 101 Ohio App. 3d 157 noting that the unique
practice of trial courts within the Second Appellate District of advising
defendants who have pleaded guilty of their right to appeal has generated a
significant number of appeals, though reversible error is seldom found.
State v. Nichols (1984), 11 Ohio St. 3d
40 -- Post conviction actions are civil in nature. A delayed appeal is not
available as Appellate Rule 5(A) applies only to criminal cases. Also see
State v. Harvey (1980), 68 Ohio App. 2d 170. But see State v. Mapson
(1982), 1 Ohio St. 3d 217 which holds there is not a final appealable order
until the trial court has filed findings of fact and conclusions of law.
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Application for reopening
State v. Davis,
119 Ohio St. 3d 422,
2008-Ohio-4608 – Syllabus: "The filing of a motion seeking a discretionary
appeal in this court does not create a bar to a merit ruling on a timely filed
application to reopen an appeal claiming ineffective assistance of counsel under
App. R. 26(B)." Defendant hired new counsel after the direct appeal was decided.
Claim of ineffective assistance of counsel was advanced in both a 26(B) motion
and in the memorandum in support of jurisdiction. Supreme Court declined
jurisdiction. Court of Appeals subsequently took this as res judicata on the
claim, though the Supreme Court had not addressed the merits.
Morgan v. Eads, 104 Ohio St. 3d 142,
2004-Ohio-6110 -- Syllabus: "Proceedings under App. R. 26(B) are collateral postconviction proceedings and not part of the direct appeal process." The
question was certified from federal court. The ultimate issue is not stated, but
is probably the deadline for filing federal habeas.
State v. McFadden
(December 2, 2003), Franklin App. No. 01AP-1476 -- Issues decided upon delayed
reopening are to be decided on their merits, then the need for reversal further
determined through Strickland analysis. Reconsideration granted but
outcome remains the same.
State v. Carter
(2001), 93 Ohio St. 3d 581 -- Consideration of new claims in a second
application for reopening barred by res judicata. Previous counsel's
failure to appeal denial of first application to the Supreme Court was not
ineffective assistance of counsel.
State v. Williams, 99 Ohio St. 3d 179,
2003-Ohio-3079, ¶ 10 -- Neither App. R. 26(B) nor State v. Murnahan
(1996), 63 Ohio St. 3d 60 provide the right to file second or successive
applications for reopening. Also see State v. Twyford, 106 Ohio St. 3d
Hoffner, 112 Ohio St. 3d 467,
2007-Ohio-376 -- A layman's unfamiliarity with the law or
the inability to secure new counsel does not excuse filing under
App. R. 26(B) within the prescribed 90 days.
State v. Hutchins, Cuyahoga App. Nos.
81578, 81579, 83421, 83564,
2005-Ohio-6094 -- The time for filing an App. R.
26(B) application runs from the final affirmation of sentence. The first appeal
affirmed conviction but remanded for resentencing. The second appeal affirmed
the sentence. If time began to run from first decision, res judicata would
preclude raising ineffective assistance with respect to the appeal of the
State v. Rozanski, Sandusky App. No.
2003-Ohio-3454, ¶8 -- When appointed appellate counsel fails to file a
brief on appellant's behalf, a genuine issue of fact exists as to whether
appellant was denied effective assistance of appellate counsel.
State v. Rowland
(2000), 138 Ohio App. 3d 473 -- Appeal reopened pursuant to App. R. 26(B)
where original appellate counsel did not raise sentencing issues. Reversed
for failure to set forth findings in support of maximum sentence.
State v. Young, Cuyahoga App. No. 79113,
2003-Ohio-2607 -- App. R. 26(B) is limited to "the appeal from the judgment of
conviction and sentence" and does not extend to appeals concerning super-shock
State v. Murnahan (1992), 63 Ohio St. 3d
60 -- Syllabus: "Claims of ineffective assistance of appellate counsel are not
cognizable in post-conviction proceedings pursuant to
R.C. 2953.21. (2) Claims
of ineffective assistance of appellate counsel may be raised in an application
for reconsideration in the court of appeals or in a direct appeal to the Supreme
Court pursuant to Section 2(B)(2)(a)(iii), Article IV of the Ohio Constitution.
(In re Petition of Brown , 49 Ohio St. 3d 222, 223...Manning v.
Alexander , 50 Ohio St. 3d 127...followed.) (3) Where the time period
for reconsideration in the court of appeals and direct appeal to the Supreme
Court has expired, a delayed claim of ineffective assistance of appellate
counsel must first be brought in an application for delayed reconsideration in
the court of appeals where the alleged error took place, pursuant to App. R. 26
and 14(B), and if delayed reconsideration is denied then the defendant may file
for delayed appeal in the Supreme Court, pursuant to Section 8, Rule II of the
Rules of Practice of the Supreme Court." For procedure now adopted by court
rule, see App. R. 26(B) - Application for Reopening.
State v. Reed (1996), 74 Ohio App. 3d 534
-- (1) At p. 535: "We hold that the two-prong analysis found in Strickland
is the appropriate level of review to determine whether an appellant has raised
a 'genuine issue' in an application for reopening an appeal under App. R.
26(B)(5)." (2) Failure of appellate counsel to raise Faretta right to
self representation issue meets both prongs of the Strickland test.
State v. Williams (1996), 74 Ohio St. 3d
454, 455 -- Issues of ineffective assistance of appellate counsel must be raised
at the first opportunity to do so. If appeal to Supreme Court is handled by new
counsel, must be raised in that appeal.
State v. Wickline (1996), 74 Ohio St. 3d
369 -- App. R. 26(B) application for reopening was denied for not being filed
within 90 days of the effective date of the rule, which was several years after
the conviction was initially affirmed. Due process, ex post facto and equal
protection attacks of strict enforcement of 90-day rule are rejected.
State v. Sweeney (1999), 131 Ohio App. 3d
765 -- Court declines to accept lack of a complete transcript and limited access
to prison law library as adequate justification for delay of more that 90 days
in filing motion for reopening.
State v. Chapman (1996), 112 Ohio App. 3d
607 -- Appellate counsel was ineffective in failing to assign as error the
improper imposition of an indefinite sentence.
State v. Wilson (1997), 80 Ohio St. 3d
132. 134 -- "That counsel was 'busy' with other cases does not constitute good
cause for the delayed (App. R. 26[B]) filing."
State v. Sizemore (1998), 126 Ohio App.
3d 143 -- Lack of counsel, or misplaced reliance on counsel does not excuse
failure to file an application in a timely manner. Nor does misplaced reliance
on a fellow inmate who is not an attorney.
State v. McNeil (1998), 83 Ohio St. 3d
457 -- Court of appeals denied application, rejecting counsel's claim that the
record was unavailable because it had been forwarded to the Supreme Court which
was hearing the appeal as of right from affirmance of the death penalty. Counsel
should have sought cooperation from other attorneys involved in the case who had
copies of the record, or from the clerk of the Supreme Court.
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Mandate; Res judicata; Law of the case doctrine
State v. Fisher, 181 Ohio App. 3d 758,
2009-Ohio-1491 – A resentencing hearing following the failure to include
postrelease control does not permit the defendant to relitigate unsuccessful
claims in his previous appeal as of right from the initial conviction. The law
of the case doctrine applies.
State v. Akemon, 173 Ohio App. 3d 709,
2007-Ohio-6217 – Trial court erred by overruling postconviction motion to
withdraw guilty plea without allowing the seven days provided by local rule for
the defendant to respond to the state‘s memorandum contra. This was harmless as
to Rule 11 claims which had also been raised in a prior appeal – the law of the
case doctrine applies. But this conclusion cannot be reached as to other claims,
requiring remand, though not necessarily a hearing on the motion‘s merits.
State v. Davis, 166 Ohio App. 3d 468,
2006-Ohio-1592 -- Defendant after
pleading no contest claimed ineffective assistance of counsel, in part based on
pursuit of a suppression motion. That assignment of error was overruled, but the
case was remanded for a hearing on a motion to withdraw the no contest plea. The
plea was vacated, the motion reargued and again overruled, and another no
contest plea was entered. Res judicata does not bar appeal of the ruling on the
motion as the reversal made the initial ruling interlocutory, subject to
reconsideration. Applying the law of the case doctrine, sufficiency of the
affidavit may be challenged as that issue was not the focus of the first appeal.
State v. Gray, 161 Ohio App. 3d 614,
2005-Ohio-3009 -- A trial court may not
expand upon or vary the terms of an appellate court's mandate, and must apply
the law as determined by the appellate court. Case was remanded for a
16(B)(1)(g) review. Instead the court granted a new trial without first
conducting that review. Court also apologizes for some aspects of its prior
State ex rel. Sharif v. McDonnell
(2001), 91 Ohio St. 3d 46 -- When the court of appeals directs the trial
judge in a postconviction case to make findings of fact and conclusions of
law supporting the summary dismissal of the case as untimely filed, such
order becomes the law of the case. The trial court must make such findings
whether or not there is a general obligation to make findings in such
State v. Childs (2001), 141 Ohio App.
3d 767 -- On reversal and remand from the Supreme Court defendant was not
entitled to a further evidentiary hearing on the suppression motion at issue.
Also see State v. Lilly (2000), 139 Ohio App. 3d 560 -- The trial court
was without authority to impose a lesser sentence following reversal and remand
on an issue not related to sentencing. State v. Lentz, Lucas App. No.
2003-Ohio-1038 -- Prior ruling on motion to quash a subpoena for
defense counsel's fee agreement and billing records held res judicata.
State ex rel. Davis v. Cleary (1992), 77
Ohio App. 3d 494 -- Intervening decisions of superior courts give rise to an
exception to the law of the case doctrine, permitting lower courts to disregard
the mandate of a superior court when a case has been remanded. In such
circumstances appeal and not mandamus is the remedy.
State v. Wallace (1997), 121 Ohio App. 3d
494 -- The law of the case doctrine is not a limitation on the court's power,
but merely a rule of practice. Accordingly, the court refuses to apply an
established exception to the doctrine as applied when there has been an
intervening decision by a higher court, but no effort was made in the case under
consideration to seek review by the higher court. For the exception see Jones
v. Harmon (1930), 122 Ohio St. 420; Gohman v. St. Bernard (1924), 111
Ohio St. 726.
State v. Brooks (1997), 118 Ohio App. 3d
444 -- Following reversal by the Supreme Court, prosecutor managed to have the
record "corrected" in a manner which would dictate a different outcome. The
Supreme Court denied reconsideration. On remand the prosecutor sought to have
the death penalty reimposed by the trial court, which instead followed the
mandate of the Supreme Court. No exception found to the law of the case doctrine
as the prosecutor had not met his duty to correct the record in a timely manner.
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State v. Gonzales, 151 Ohio App. 3d 160,
2002-Ohio-4937, ¶60-63 -- On remand the trial court must proceed from the point
at which the error occurred.
State ex rel. Douglas v. Burlew, 106 Ohio St. 3d 180,
After the state prevailed on a motion to suppress, the defendant pled guilty to
one count of OMVI and the other was dismissed. When the court of appeals
reversed, the defendant contended the dropped count could not be revived and
sought a writ of prohibition. Writ was properly denied. Following reversal the
trial court must proceed from the point at which the error occurred. Here the
erroneous ruling preceded dismissal. The court did not patently and
unambiguously lack jurisdiction to set aside the dismissal. Appeal is the remedy
if revival was in fact erroneous.
In re Walker, 162 Ohio App. 3d 303,
2005-Ohio-3773 -- In termination of parental rights proceedings there had been a
previous reversal based on inadmissible hearsay within a psychologist's report
and testimony. On remand, the trial court reopened the hearing and allowed the
agency to remedy this situation, including offering the testimony of another
psychologist. Reversed. On remand, a case returns to the docket of the trial
court in the same condition that obtained before the action that resulted in
appeal and reversal. Here that was the hearing on the motion for permanent
custody. A full new hearing should have been conducted. Furthermore, it was
error to allow the agency to present an additional witness but deny the parent
and grandparent that opportunity. Issue on remand is the present situation,
after five years have passed. Also suggested that a new magistrate be assigned.
In re York
(2001), 142 Ohio App. 3d 524 -- Under the "direct remand rule" an appellate
court reversing because the evidence is insufficient may remand to the trial
court for conviction to be entered on a lesser included offense.
Burks v. United States (1977), 437 U.S. 1
-- Double jeopardy does not bar retrial based on trial error. It does bar
retrial when reversal is because the evidence was insufficient. Also see
United States v. Scott (1978), 437 U.S. 82, 87-92.
Tibbs v. Florida (1982), 457 U.S. 31 --
Double jeopardy bars retrial when a case is reversed because the evidence is
insufficient, but not when reversal is because conviction is against the
manifest weight of the evidence. Also see State v. Thompkins (1997), 78
Ohio St. 3d 380, 386-389.
State v. McGee (1999), 128 Ohio St. 3d
541 -- Supreme Court reversed and remanded an endangering children case holding
recklessness was the culpable mental state. (1) No error in amendment of the
indictment to allege recklessness. (2) Case had originally been tried to the
bench, and the judge was of the view that following reversal trial would reopen
with the defendant permitted to cross-examine state's prior witnesses and call
additional witnesses. Reversed. Case should proceed towards a new trial as from
arraignment. Prior jury waiver is nullified.
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