State v. Musick

• Decision Date: 25 April 1997
• Docket Number: No. 96-P-0207,96-P-0207
• Citation: State v. Musick, 119 Ohio App.3d 361, 695 N.E.2d 317 (Ohio App. 1997)
• Parties: The STATE of Ohio, Appellant, v. MUSICK, Appellee.
• Court: Ohio Court of Appeals

Page 361

119 Ohio App.3d 361

695 N.E.2d 317

The STATE of Ohio, Appellant, v. MUSICK, Appellee.

No. 96-P-0207.

Court of Appeals of Ohio Eleventh District, Portage County.

Decided April 25, 1997.

Victor V. Vigluicci, Portage County Prosecuting Attorney, and Mark J. Hanna, Assistant Prosecuting Attorney, Ravenna, for appellant.

James J. Crisan, Warren, for appellee.

NADER, Judge.

This is an accelerated appeal by appellant, the state of Ohio, from a judgment entry of the Portage County Municipal Court, Ravenna Division, granting the motion of appellee, Richard P. Musick, to dismiss the criminal complaint filed against him.

On March 18, 1996, appellee was cited for failing to comply with the provisions of his deer-hunting permit in violation of R.C. 1531.02 and Ohio Adm. Code 1531:31-9-01(T). Apparently, appellee participated in a controlled deer hunt on the premises of the Ravenna Munitions Plant on two separate occasions, November 3, 1995, and November 17, 1995, when he was permitted to hunt only once. On March 19, 1996, appellee appeared in the offices of the Portage County Clerk of Courts and paid a $37 fine and $38 in court costs. Appellee did not sign the plea of guilty appearing on the reverse side of the citation. The parties stipulated that it was common practice in the clerk's office to accept payment of the fine without a signature on the guilty plea.

However, the deputy clerk made a mistake in imposing the fines. The summary procedure whereby the clerk of courts is authorized to accept guilty pleas and impose sentence in the form of fines is limited by Crim.R. 4.1 to cases where the defendant is charged only with a minor misdemeanor. Crim.R. 4.1(B) defines a minor misdemeanor as an offense for which the potential penalty does not exceed $100. See, also, R.C. 2929.21(D). Each court is required under Crim.R. 4.1(E) to establish a schedule of fines applicable to minor misdemeanors. The deputy clerk in this case apparently determined that a violation of R.C. 1531.02 was a minor misdemeanor, imposed a $37 fine in accordance with the schedule created by the Ravenna Municipal Court and assessed $38 in court costs, charging appellee $75; however, a violation of R.C. 1531.02 is not a minor misdemeanor. It is a fourth-degree misdemeanor, per R.C. 1531.99, punishable by a maximum of thirty days in jail, a fine of $250, loss of hunting privileges up to three years, or any combination of the three. R.C. 2929.21 and 1533.68.

The same day appellee appeared before the clerk and paid the fine, March 19, 1996, the clerk of courts issued a second summons, commanding appellee to appear in court on March 29, 1996. On the appearance docket, the clerk entered a notation that the "money paid on waiver" would be "credited as a bond"; however, there was no judgment entry to this effect. Appellee pleaded not guilty. On March 29, 1996, appellee filed a motion to dismiss the complaint on the ground that his prosecution was barred by the Double Jeopardy Clauses of the United States and Ohio Constitutions.

Judge John A. Enlow held a hearing on appellee's motion on April 17, 1996. Appellee testified that Officer Richard Cooley of the Ohio Department of Natural Resources met with him in appellee's office in Warren, on March 18, 1996. Cooley filled out a citation and told appellee that he had to appear in court. After Cooley left, appellee noticed that Cooley did not check the box on the reverse side of the citation form indicating that he was required to appear in court, which confused him. He called someone in the clerk of courts' office and asked how he could "take care" of the citation. The person on the phone said that he could appear at the clerk of courts' office and pay $75. On the 19th, appellee went to the public service window at the clerk's office. He showed a clerk his ticket and said he was there to pay a fine. The clerk consulted her computer and asked him to pay $75, which he did. The clerk noted on the reverse side of the citation that appellee had paid a total of $75 in a section labeled "Guilty Plea, Waiver of Trial, Payment of Fines and Costs," but did not ask him to sign the guilty plea form. Instead, she gave him a receipt and told him that he did not have to appear in court.

On June 5, 1996, Judge Enlow granted appellee's motion to dismiss. On June 6, 1996, the clerk entered a notation on the appearance docket that the $75 "fine for waiver" would be construed as a forfeited bond; again, there was no accompanying judgment entry to this effect. The state has made no attempt to refund the $75.

On June 12, 1996, the state filed a notice of appeal as of right pursuant to R.C. 2945.67, but did not file a certification pursuant to Crim.R. 12(J). In its assignments of error, the state alleges:

"1. The trial court erred as a matter of law in granting the appellee's motion to dismiss for double jeopardy.

"2. The trial court's granting of the appellee's motion to dismiss on the basis of double jeopardy was an abuse of discretion."

A. Jurisdiction

Although not raised by appellee, we raise sua sponte the issue of our jurisdiction over this appeal in light of the prosecutor's failure to file a Crim.R. 12(J) certification along with the notice of appeal. Crim.R. 12(J) provides the procedural requirements for appeals taken by the state in a criminal case. It reads:

"When the state takes an appeal as provided by law, the prosecuting attorney shall certify that: (1) the appeal is not taken for the purpose of delay; and (2) the ruling on the motion or motions 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.

"The appeal shall not be allowed unless the notice of appeal and the certification by the prosecuting attorney are filed with the clerk of the trial court within seven days after the date of the entry of the judgment or order granting the motion." (Emphasis added.)

This certification is jurisdictional; we cannot entertain an appeal if the state fails to comply. As the rule is currently written, it may be contended that the rule appears to apply the certification requirement to all appeals by the state as provided by law. In contrast, the former version of Crim.R. 12(J) required this certification only in two, very narrow contexts: where the state appealed the judgment of the trial court to return property that was allegedly embezzled, and where the state appealed an interlocutory order granting a motion to suppress evidence. If we were to mechanically enforce the rule as written, then we would have no choice but to dismiss the present appeal for lack of jurisdiction. However, strict compliance with the plain text of Crim.R. 12(J) would lead to absurd results.

Clearly, the rule was not designed to apply in a case such as the one at bar; it expressly requires a statement that (1) the appeal is not taken to delay the case, and (2) the prosecution's case has been so harmed by the judge's ruling, presumably upon an evidentiary issue, that it could not sustain its burden of proof "with respect to the pending charge." These requirements clearly contemplate an interlocutory order, such as the disposition of a motion to suppress evidence, wherein the trial court has made a ruling on less than the entire cause which so cripples the prosecution's case that it cannot proceed.

In contrast, a motion to dismiss all charges on double jeopardy grounds, when granted, disposes of the entire case. As a result, there are no further proceedings which the state can delay, and there are no pending charges with respect to which the state must sustain its burden of proof. These certifications are an unnecessary surplusage in the context of an appeal of this type of motion to dismiss. Accordingly, we conclude that Crim.R. 12(J) is inapplicable to the case at bar, see Crim.R. 1(C) ("These rules, * * * to the extent that they would by their nature be clearly inapplicable, shall not apply to procedure upon appeal * * *"), and hold that the Portage County Prosecutor's failure to file the certification does not deprive this court of jurisdiction to consider this appeal.

B. Standard of Review

The next issue raised by the briefs of the parties concerns the appropriate standard of review applicable to the trial court's decision to dismiss pending charges on double jeopardy grounds.

Appellee relies on State v. Mrus (1991), 71 Ohio App.3d 828, 595 N.E.2d 460, a reported decision from this court in which the panel, including two visiting judges, concluded: "Upon review of a motion to dismiss, this court's standard of review is whether the trial court abused its discretion." Id. at 829, 595 N.E.2d at 461 (discussing a motion to dismiss filed on ex post facto grounds).

Upon further reflection, we have reconsidered that pronouncement and declare it to be in error. Both the interpretation of a statute and a determination by a trial court that the Double Jeopardy Clause prohibits prosecution, in a given case, are matters of law. In general, an appellate court will defer to a trial court's factual findings, but must independently determine, as a matter of law, whether the trial court erred in applying the substantive law to the facts of the case. State v. Williams (1994), 94 Ohio App.3d 538, 543, 641 N.E.2d 239, 242-243; Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership (1992), 78 Ohio App.3d 340, 346, 604 N.E.2d 808, 811 ("A trial court's purely legal determination will not be given the deference that is properly accorded to the trial court with regard to those determinations that are within its discretion."). In this context, we must defer to Judge Enlow's findings of fact recited in his judgment entry, but we must independently determine if he correctly applied the substantive constitutional law of double jeopardy to the facts of this case. This is a de novo standard of review.

Similarly, ten out of thirteen ...