State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 77-1447

CourtUnited States State Supreme Court of Ohio
Writing for the CourtPER CURIAM; C. WILLIAM O'NEILL
Citation378 N.E.2d 162,55 Ohio St.2d 94,9 O.O.3d 88
Parties, 9 O.O.3d 88 The STATE ex rel. SPECIAL PROSECUTORS, Appellants, v. JUDGES, COURT OF COMMON PLEAS, Asher, Appellee.
Docket NumberNo. 77-1447,77-1447
Decision Date12 July 1978

Ronald E. Asher (hereinafter appellee), on June 11, 1975, pleaded guilty to the charge of murder. Appellee's plea of guilty was accepted by Judge William Iddings of the Court of Common Pleas of Belmont County, resulting in appellee's conviction. Thereafter, on June 23, 1975, appellee filed notice of appeal. The Court of Appeals, in its journal entry of March 3, 1976, affirmed the judgment of the trial court.

Subsequently, counsel for appellee, on November 4, 1976, filed a motion to withdraw the plea of guilty, pursuant to Crim.R. 32.1, with the Court of Common Pleas of Belmont County (hereinafter the trial court). An evidentiary hearing was held concerning this motion on February 15, 1977. The trial court then granted the motion to withdraw the plea of guilty. The state of Ohio failed to perfect an appeal to the Court of Appeals from this judgment of the trial court.

Pursuant to the judgment permitting the withdrawal of appellee's plea of guilty, appellee was rearraigned, and trial was set for December 7, 1977. On November 16, 1977, appellants, special prosecutors appointed in the trial court, filed, in the Court of Appeals, a complaint for a writ of prohibition to prevent the judges of the trial court from proceeding with a trial based upon the alleged lack of jurisdiction of the trial court to permit the withdrawal of appellee's plea of guilty.

The Court of Appeals denied the writ. Appellants' application for reconsideration was similarly denied by the Court of Appeals.

The cause is now before this court on an appeal as of right.

Charles F. Knapp and Keith Sommer, pro se.

Weiner, Lippe & Cromley and Jerry Weiner, Columbus, for intervening appellee Ronald E. Asher.


Appellants contend that the denial by the Court of Appeals of the writ of prohibition was in error. The function of prohibition is to prevent an inferior tribunal from usurping or exercising jurisdiction with which it is not legally vested. State ex rel. Ferrebee v. Court of Appeals (1968), 14 Ohio St.2d 109, 236 N.E.2d 559. The Court of Appeals, in the instant cause, expressed its reasoning for denying the writ as follows:

"We are asked to declare that the vacation of (the) plea was erroneous. We can not do this under this proceeding. The withdrawal and vacation of (a) plea is a fait accompli. Prohibition is a preventive writ and has no application to acts already done. Marsh v. Goldthorpe, Mayor (1930), 123 Ohio St. 103 (174 N.E. 246)."

The language in Marsh v. Goldthorpe, supra, relied upon by the Court of Appeals, was merely dictum. In State ex rel. Adams v. Gusweiler (1972), 30 Ohio St.2d 326, at page 329, 285 N.E.2d 22, at page 24, this court stated:

" * * * However, in none of those cases (State ex rel. Frasch v. Miller (1933), 126 Ohio St. 287, 185 N.E. 193; Marsh v. Goldthorpe, supra; State ex rel. Brickell v. Roach (1930), 122 Ohio St. 117, 170 N.E. 866) was the rule, that prohibition may be invoked only to prevent a future act and not to undo an act already performed, necessary to its disposition."

Finding that strict adherence to the rule would exalt form over substance, especially where, as in that cause, a total and complete want of jurisdiction by the lower court was presented, this court, in State ex rel. Adams v. Gusweiler, supra, held, 30 Ohio St.2d, at page 330, 285 N.E.2d, at page 24, as follows:

"Thus, a court which has jurisdiction to issue the writ of prohibition as well as the writs of procedendo and mandamus has plenary power, not only to prevent excesses of lower tribunals, but to correct the results thereof and to restore the parties to the same position they occupied before the excesses occurred." See State ex rel. Northern Ohio Telephone Co. v. Winter (1970), 23 Ohio St.2d 6, 260 N.E.2d 827.

Thus, the pivotal issue herein presented is whether the trial court exceeded its jurisdiction in vacating appellee's plea of guilty subsequent to the Court of Appeals' affirmance of its prior judgment convicting the appellee on the basis of his guilty plea. Appellee essentially argues that the trial court had jurisdiction, pursuant to Crim.R. 32.1, * to hear and determine the motion to withdraw the guilty plea. Appellants basically contend that Crim.R. 32.1 does not confer jurisdiction upon the trial court because (1) the jurisdiction was vested in the Court of Appeals, and (2) the Court of Appeals' decision on the voluntariness of the plea became the law of the case and the trial court was bound to follow it.

The parties have cited no authority in Ohio, or elsewhere, that specifically addresses the question of whether Crim.R. 32.1 or an analogous provision is applicable so as to allow the trial court to grant a motion to withdraw the guilty plea after an appeal has been taken relative to the original plea and the appellate court has affirmed the trial court's judgment resulting from that plea of guilty. The issue is apparently one of first impression.

Neither the Ohio Rules of Appellate Procedure nor the Ohio Rules of Criminal Procedure are explicit as to what effect the taking of an appeal has on the jurisdiction of the lower court. The general rule of law is that the trial court loses jurisdiction to take action in a cause after an appeal has been taken and decided. State ex rel. Continental Cas. Co. v. Birrell (1955), 164 Ohio St. 390, 131 N.E.2d 388; In re Mahoning Valley Sanitary District (1954), 161 Ohio St. 259, 119 N.E.2d 61; Majnaric v. Majnaric (1975), 46 Ohio App.2d 157, 347 N.E.2d 552; Vavrina v. Greczanik (1974), 40 Ohio App.2d 129, 318 N.E.2d 408; Sullivan v. Cloud (1939), 62 Ohio App. 462, 24 N.E.2d 625. See, also, 7 Moore's Federal Practice (2 Ed.) 419, Paragraph 60.30(2), wherein it is stated:

"But, the general rule is that when an appeal is taken from the district court the latter court is divested of jurisdiction, except to take action in aid of the appeal, until the case is remanded to it by the appellate court."

Yet, it has been stated that the trial court does retain jurisdiction over issues not inconsistent with that of the appellate court to review, affirm, modify or reverse the appealed judgment, such as the collateral issues like contempt, appointment of a receiver and injunction. In re Kurtzhalz (1943), 141 Ohio St. 432, 48 N.E.2d 657; Goode v. Wiggins (1861), 12 Ohio St. 341; Fawick...

To continue reading

Request your trial
497 cases
  • Cvijetinovic v. Eberlin, 04CV2555.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • 31 Marzo 2008
    ...appellate court's decision affirming Cvijetinovic's conviction. A fair reading of Douse and State ex rel. Special Prosecutors v. Judges, 55 Ohio St.2d 94, 97, 378 N.E.2d 162 (Ohio 1978), the case on which the Court of Appeals relied, supports the Court of Appeals' interpretation and does no......
  • In re H.S., Case Nos. 16CA3569, 16CA3570.
    • United States
    • United States Court of Appeals (Ohio)
    • 3 Febrero 2017
    ...court loses jurisdiction except to take action in aid of the appeal. State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d 162 (1978). {¶ 60} Additionally, "the determination as to the appropriateness of an appeal lies solely with the appellate......
  • The State of Ohio v. KETTERER, 2007-1261
    • United States
    • United States State Supreme Court of Ohio
    • 25 Agosto 2010
    ...[19] {¶ 61} In addition, the state invokes State ex rel. Special Prosecutors v. Judges, Belmont Cty. Court of Common Pleas (1978), 55 Ohio St.2d 94, 97-98, 9 O.O.3d 88, 378 N.E.2d 162, to argue that the court lacked jurisdiction to vacate Ketterer's guilty pleas. In Special Prosecutors, thi......
  • Southern Ohio Medical Center v. Franklin Harris, 99-LW-3973
    • United States
    • United States Court of Appeals (Ohio)
    • 3 Septiembre 1999
    ...appellate court to review, affirm, modify or reverse the appealed judgment * * *." State ex rel. Special Prosecutors v. Judges (1978), 55 Ohio St.2d 94, 97; see, also, Corradi v. Gene Norris Honda (1995), 106 Ohio App.3d 788, 793 (trial court retains jurisdiction over "collateral issues" th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT