State v. Hughes
| Decision Date | 19 March 1975 |
| Docket Number | No. 73-1037,73-1037 |
| Citation | 41 Ohio St.2d 208,324 N.E.2d 731,70 O.O.2d 395 |
| Parties | , 70 O.O.2d 395 The STATE of Ohio, Appellant, v. HUGHES, Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court
Insofar as App.R. 4(B), permitting the prosecution, as of right, to appeal judgments of trial courts, enlarges the statutory right of appeal provided by R.C. 2945.67 through 2945.70 and abridges the right of appellate courts to exercise their discretion in allowing appeals provided by these same sections, such rule is invalid under the provisions of Section 5 or Article IV of the Ohio Constitution, and an appeal filed by the state pursuant to App.R. 4(B) is properly dismissed where the provisions of R.C. 2945.68 have not been complied with.
This case arose out of the arrest of the appellee, James Walter Hughes, in Green Township, Hamilton County, by an off-duty Delhi Township police officer. The officer, at the time he observed the appellee, was aware of the existence of two outstanding misdemeanor warrants for the arrest of the appellee, and also that the Cincinnati Police Division had issued a police broadcast to arrest the defendant for 'investigation of grand larceny.' Officer Murphy thereupon placed the appellee under arrest. Hughes refused to submit to the arrest, and, later, the charges involved in this appeal were brought, alleging violations of R.C. 2917.33, resisting an officer, and R.C. 2901.252, assault on a law enforcement officer.
On March 30, 1973, in the Hamilton County Municipal Court, appellee's motion to quash the warrants was granted and the charges were dismissed for the reasons that the police officer made the arrest outside his jurisdiction and did not have a warrant to arrest appellee for any crime.
The State of Ohio filed a notice of appeal to the Court of Appeals on April 12, 1973. That appeal was dismissed for failure of the appellant to comply with the requirements of R.C. 2945.68.
Appellant moved the Court of Appeals to certify the record to this court as manifesting a conflict between appellate districts on the issue of whether the state may proceed on notice of appeal alone. The Court of Appeals denied the motion.
The cause is now before this court pursuant to the allowance of appellant's motion for leave to appeal.
Thomas A. Luebbers, City Solicitor, Paul J. Gorman and Cheryl Levey, Cincinnati, for appellant.
No appearance for appellee.
Appellant maintains in a single proposition of law that:
'The provisions of Ohio Revised Code, Section 2945.68, requiring the permission of the Court of Appeals before a bill of exceptions may be filed, are procedural in nature and are inconsistent with, and superseded, by, the Rules of Appellate Procedure.'
Appellant, in this case, filed a notice of appeal in the trial court pursuant to App.R. 4(B). Arr.R. 4(B) permits the prosecution to appeal as of right in criminal cases. This rule, as applicable to appeals by the prosecution, is in conflict with R.C. 2945.68.
R.C. 2945.68 permits a prosecuting attorney, solicitor, or the Attorney General to present a bill of exceptions in a criminal action to the Court of Appeals or the Supreme Court. The statute, however, grants the Court of Appeals and the Supreme Court discretion in determining whether to allow the filing of a bill of exceptions by the prosecution.
Appellant argues that the provisions of R.C. 2945.67 and 2945.70 are merely procedural in nature and, as such, have been superseded by App.R. 4(B). We disagree.
Section 5(B) of Article IV of the Ohio Constitution provides, in part:
It was pursuant to this constitutional provision that the Appellate Rules were adopted by the Ohio Supreme Court, effective July 1, 1971. App.R. 1 provides that the rules govern procedure in appeals to Courts of Appeals from the trial courts of record in Ohio. Clearly, they supersede all procedural statutes in conflict with them.
R.C. 2945.68, however, grants the prosecution a substantive right of appeal which did not exist at common law prior to the adoption of Section 6 of Article IV of the Ohio Constitution (now Section 3 of Article IV), and the implementing legislation contained in R.C. 2945.67 through 2945.70-formerly G.C. 13446-1, 13446-2, 13446-3 and 13446-4. Section 3 of Article IV of the Ohio Constitution granted appellate late courts, among other things, such jurisdiction as may be provided by law. R.C. 2945.67 through 2945.70 and their predecessor statutes give appellate courts specific authority to hear appeals by the prosecution. The weight of authority in this county generally opposes the right of the government to bring error in a criminal case unless permitted by statute. 2 Ohio Jurisprudence 2d 786, Appellate Review, Section 179. See, also, 2 American Jurisprudence 984, Appeal and Error, Section 227.
The effect of R.C. 2945.67 through 2945.70 is to grant jurisdiction to appellate courts to hear appeals by the prosecution in criminal cases and to create a substantive right in the prosecution to bring such appeals in the instances permitted by R.C. 2945.70 and the decisions interpreting that section.
Moreover, the right created and the jurisdiction granted by R.C. 2945.67 through 2945.70 is limited. Those sections, as well as specifying the procedure to be followed in bringing an appeal, also limit the right of appeal by granting appellate courts discretion as to which cases will be allowed for review.
App.R. 4(B), in providing an appeal as of right by the prosecution, enlarges the statutory right of appeal provided by R.C. 2945.67 through 2945.70 and abridges the right of appellate courts to exercise their discretion in allowing such appeals.
App.R. 4(B) is in conflict with a substantive statutory provision and must yield to it. The Court of Appeals was correct in dismissing the appeal by reason of the failure of appellant to file a bill of exceptions pursuant to R.C. 2945.68. The judgment of the Court of Appeals is, therefore, affirmed.
Judgment affirmed.
I do not agree that App.R. 4(B) abridges, enlarges or modifies any 'substantive right,' as that term is used in Section 5(B) of Article IV of the Constitution of Ohio. More particularly, the provisions of R.C....
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