Franklin County Criminal Law Casebook
Reproduced with permission from
David L. Strait and the Franklin County Public Defender Office
Criminal Rule 5 -- Initial Appearance,
Revised Code Chapter 2937 -- Preliminary
R.C. 2945.71(C)(1) -- Preliminary hearing must
be within ten consecutive days if defendant is held, fifteen
consecutive day if
not in custody.
State v. McCoy, 188 Ohio App. 3d 152,
2010-Ohio-2639 – Defendant’s complaints included lack of counsel at the
preliminary hearing and an inadequate response when he asked for new counsel as
trial was about to begin. (1) Defendant’s failure to provide a transcript of the
preliminary hearing limits review, but even if a transcript were available the
defendant has failed to demonstrate prejudice. No motion seeking relief was
filed in the trial court before the defendant’s mid-trial entry of a no contest
plea. See concurring opinion for a superior analysis. (2) Defendant has failed
to overcome the suggestion of bad faith when a request for new counsel is made
just before trial.
State v. Mosti, Jefferson App. No. 02 JE
2004-Ohio-109 -- The remedy when a preliminary hearing has not
been recorded is for the Common Pleas Court to order a new preliminary hearing.
It was error for the court to dismiss charges without prejudice.
State v. Washington (1986), 30 Ohio App.
3d 98 -- Headnote: "A finding of probable cause by the court conducting the
preliminary hearing is not appealable, and it is reversible error for the court
of common pleas to dismiss the indictment base upon its disagreement with the
municipal court's finding of probable cause. (Crim. R. 5[B] and
State v. Parrott (1971), 27 Ohio St. 2d
205 -- The right to counsel attaches at preliminary hearing. Denial of that
right invalidates a subsequent conviction unless the error was harmless (beyond
a reasonable doubt). Also see State v. Withers (1975), 44 Ohio St. 2d 53;
Coleman v. Alabama (1970), 399 U.S. 1.
State v. Spates (1992), 64 Ohio St. 3d 269
-- Paragraph two of the syllabus: "A defendant's plea of guilty entered into
knowingly, intelligently and voluntarily after a preliminary hearing waives
defendant's right to challenge a claimed deprivation of the right to counsel at
the preliminary hearing stage of a criminal proceeding. (Tollett v. Henderson
, 411 U.S. 258, 267..., followed.)"
State v. Mitchell (1975), 42 Ohio St. 2d
447 -- A motion to suppress evidence does not lie at the preliminary hearing.
State v. Nelson (1977), 51 Ohio App. 2d 31
-- A preliminary hearing does not place the defendant in jeopardy. If the court
determines that there is not probable cause to bind a defendant over on a felony
charge, but is probable cause to believe he committed a misdemeanor, the court
may not proceed to dispose of the misdemeanor without causing a complaint to be
filed. Thus, a plea to a misdemeanor, without a complaint, is unauthorized and
jeopardy does not bar subsequent prosecution for the original felony. (Decision
may be subject to challenge.) Also see State v. Kenney (1975), 74 Ohio
Ops. 2d 352.
State v. Pugh (1978), 53 Ohio St. 2d 153
-- Without elaborating, Supreme Court affirms court of appeals holding that
failure to accord a preliminary hearing within the prescribed time does not
entitle the defendant to the dismissal of any indictment which follows.
State v. Morris (1975), 42 Ohio St. 2d 307
-- Paragraph three of the syllabus: "There is no constitutional right to a
preliminary hearing under
R.C. 2937.10, once an indictment has been returned by
a grand jury, and, absent a showing by a defendant of particularized need for
the inspection of grand jury minutes, such latter relief is not required." Also
see State v. Lamp
(1977), 59 Ohio App. 2d 125, 126-127.
State v. Wood (1976), 48 Ohio App. 2d 339
-- There is no constitutional right to a preliminary hearing. If the defendant
does not seek a remedy for the failure to afford a preliminary hearing before he
is indicted, no relief is due. Also see State v. Grim (1975), 44 Ohio
App. 2d 152.
State v. Martin (1978), 56 Ohio St. 2d 289
-- Paragraph two of the syllabus: "When, at the request of defendant's counsel,
a judge extends the time for a preliminary hearing pursuant to Crim. R. 5(B)(1),
this continuance extends the time the defendant is required to be brought to
both a preliminary hearing and trial pursuant to
Styer v. Brichta (1990), 69 Ohio App. 3d
738 -- Habeas corpus lies where accused has not been afforded a preliminary
hearing within the time specified by
El Vocero de Puerto Rico v. Puerto Rico
(1993), 508 U.S. 147 -- Probable cause hearings, which are the equivalent of
preliminary hearings under the Puerto Rico Rules of Criminal Procedure, must be
open to the public.
State v. Ferguson (1979), 64 Ohio App. 2d
165 -- Dismissal of indictment as a sanction for preliminary hearing transcript
being "unavailable" was premature without consideration of alternative remedies.
State v. Ratcliff (1994), 95 Ohio App. 3d
199, 203 -- Though not elaborating, court says it finds no error in judge having
based decision on a motion to suppress both on the evidence produced at the
suppression hearing and on what he previously heard at a preliminary hearing in
the same case, conducted before him, and where the same witnesses testified.
State v. Howell (1994), 64 Ohio Misc. 2d
23 -- The standard for probable cause at a preliminary hearing is whether there
is sufficient credible evidence to believe that the defendant committed the
Return to top