State v. Nelson

• Decision Date: 24 February 1977
• Citation: 51 Ohio App.2d 31,365 N.E.2d 1268,5 O.O.3d 158
• Parties: , 5 O.O.3d 158 The STATE of Ohio, Appellant, v. NELSON et al., Appellees.
• Court: Ohio Court of Appeals

Page 31

51 Ohio App.2d 31

365 N.E.2d 1268, 5 O.O.3d 158

The STATE of Ohio, Appellant, v. NELSON et al., Appellees.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Feb. 24, 1977.

Syllabus by the Court

1. The failure of the trial court to follow Criminal Rule 48(B) requiring written findings of fact and reasons for the dismissal of a case may be classed as harmless error when the record itself is clear as to the basis for the court's action.

2. At a preliminary hearing, the Municipal Court is limited to determining probable cause and binding the accused over to the Court of Common Pleas, or ordering the accused discharged, or finding probable cause to believe the accused committed a misdemeanor and retaining the case for trial after causing a complaint to issue charging the accused with a misdemeanor (Criminal Rule 5(B)).

3. In felony cases, the Municipal Court has no jurisdiction or power to determine the guilt or innocence of an accused. The preliminary hearing does not place the accused in jeopardy.

4. An accused cannot premise a claim of former jeopardy on a prior court proceeding if that court lacked jurisdiction to try him for the crime charged.

5. Petty theft and robbery arising out of a single incident constitute the same offense for purposes of double jeopardy because petty theft does not require proof of any element not required to be proved for a conviction for robbery.

John T. Corrigan, Cleveland, for appellant.

Kocian, Peterson, Berk & Goldstein, Cleveland, for appellees.

JOHN V. CORRIGAN, Judge.

This is an appeal by the state from the granting of a motion to dismiss an indictment for robbery filed against the appellees, Thelma Nelson and Michael Wilson.

In dismissing the indictment, the court made no findings of fact and did not state its reasons for granting the dismissal. The appellant's first assignment of error is that the Court of Common Pleas erred in dismissing the indictment without stating on the record the court's findings of fact and reasons for the dismissal.

Criminal Rule 48(B) provides that if a court dismisses an indictment over objection of the state the court "shall state on the record its findings of fact and reasons for the dismissal." Criminal Rule 48(B) is mandatory and should be followed by the trial court when dismissing an indictment over the state's objection.

In State v. Bound (1975), 43 Ohio App.2d 44, 332 N.E.2d 366, we held:

"The failure of the trial court to comply with Criminal Rule 48(B) when dismissing an indictment for lack of a speedy trial requires a remand to the trial court, on appeal by the state, for such findings of fact and reasons for the dismissal that will enable the reviewing court to pass upon the assignments of error."

Bound, however, does not require a remand in all cases. In Bound, the defendant claimed that his constitutional right to a speedy trial had been violated. Without findings of fact as to the reasons for the delay in bringing the accused to trial, we could not determine if the trial court acted correctly when it determined that the accused should be discharged because of a denial of his right to a speedy trial. Also, there was some doubt as to whether the trial court found a denial of a speedy trial based on the defendant's constitutional right or his statutory rights under Ohio law. A statement of the court's reasons for dismissing the indictment against Bound would have resolved this doubt. In Bound, violation of Crim. R. 48(B) required a remand to clarify the record so we could properly pass upon the appellant's assignments of error.

In the case at bar, however, there is no need to clarify the record. The facts are not in dispute and it is clear that the indictment was dismissed on a claim of former jeopardy. Although it was error for the trial court to fail to state its findings of fact and reasons for the dismissal, the error did not prejudice the state's appeal. Accordingly, we find the error to be harmless and overrule appellant's first assignment of error. See Crim. R. 52(A).

Appellant's second and third assignments of error will be treated together because they both involve the same issue. The appellant contends that the court erred in dismissing the indictment on the basis of former jeopardy because the prior convictions of the appellees were obtained without jurisdiction and were void and therefore cannot support a claim of former jeopardy.

The record establishes that Thelma Nelson and Michael Wilson were accused of shoplifting a leisure suit from the May Company. The suit had a retail value of forty-one dollars and ninety-seven cents. Security guards for the May Company observed Michael Wilson place the suit in a shopping bag and begin to leave the store. When the security guard identified himself, Michael Wilson ran. A chase ensued and Michael Wilson was apprehended. As Wilson was being brought back to the store, he struck one of the guards knocking him to the ground. The guard struck his head on the ground and had to receive medical attention.

Both Michael Wilson and Thelma Nelson were charged with robbery, a felony of the second degree. They were brought to Cleveland Municipal Court for a preliminary hearing. The court found that there was no probable cause to believe that a felony had been committed but did find probable cause to believe that the appellees had committed petty theft, a misdemeanor of the first degree. The court, however, never caused a complaint to issue charging the appellees with the crime of petty theft. The appellees immediately entered pleas of no contest to the petty theft charge. The court found them guilty of petty theft and sentenced them to ten days in the workhouse and to pay a fine of fifty dollars plus costs. The ten days were suspended and the appellees were placed on one-year inactive probation.

Two weeks after the municipal court proceedings, the county grand jury returned indictments against Michael Wilson and Thelma Nelson charging them with robbery in the May Company incident. Both appellees filed motions in Common Pleas Court alleging that they had once been in jeopardy in Municipal Court for the alleged theft from the May Company and that further prosecutions against them for that incident would constitute double jeopardy and violate their rights under Section 10, Article I of the Ohio Constitution and the Fifth Amendment to the United States Constitution. The motions were granted and the appellees were ordered discharged.

It is clear that if the convictions in the Cleveland Municipal Court were proper and for the same offense as charged in the indictments, the double jeopardy clauses of the Ohio and federal constitutions will protect the appellees from further prosecution under the indictments.

The Ohio Supreme Court stated in State v. Best (1975), 42 Ohio St.2d 530, 330 N.E.2d 421:

"2. To sustain a plea of former jeopardy it must appear:

"(1) that there was a former prosecution in the same state for the same offense;

"(2) that the same person was in jeopardy on the first prosecution;

"(3) that the parties are identical in the two prosecutions; and

"(4) that the particular offense, on the prosecution of which the jeopardy attached, was such an offense as to constitute a bar."

There is no dispute that the second and third requirements as set forth in Best are satisfied in this case. The parties before the Municipal Court and the Court of Common Pleas are identical. The fact that the prior proceeding was in Municipal Court and the present proceeding is in Common Pleas Court will not defeat the identity of the parties. For purposes of double jeopardy, the state is a single sovereign and cannot defeat a defendant's double jeopardy rights by prosecuting first in a municipal court and then in a county court. Waller v. Florida (1970), 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435; State v. Best, supra. The fourth requirement is also satisfied. Petty theft is a lesser included offense of robbery. (See our discussion of appellant's fourth assignment of error.) For purposes of double jeopardy an offense and all its lesser included offenses are the same offense. State v. Best, supra.

The crucial issue in determining if the appellees' claim of double jeopardy is well taken is whether or not the proceedings in Municipal Court constituted a former prosecution for the same offense.

In 1907, the United States Supreme Court stated in Grafton v. United States (1907), 206 U.S. 333, at 345, 27 S.Ct. 749, at 751, 51 L.Ed. 1084:

"We assume as indisputable on principle and authority that before a person can be said to have been put in jeopardy of life or limb the court in which he was acquitted or convicted must have had jurisdiction to try him for the offense charged."

The same rule was adopted in Ohio. The Ohio Supreme Court said in State v. Rose (1914), 89 Ohio St. 383, at 386, 106 N.E. 50, at 51:

" * * * for to be in jeopardy there must not only be a sufficient legal charge but a sufficient jurisdiction to try the charge."

It is clear that an accused can premise a claim of former jeopardy on a prior court proceeding only if that court had jurisdiction to try him for the crime charged. Grafton v. United States, supra; Diaz v. United States (1911), 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500; United States v. Sabella (2nd Cir. 1959), 272 F.2d 206; State v. Rose, supra; Wilson v. Lasure (1930), 36 Ohio App. 107, 172 N.E. 694; State v. McGraw (1961),177 N.E.2d 697, 86 Ohio Law Abs. 490; Solomon v. State (Tenn.Crim.Apps., 1975), 529 S.W.2d 743; Commonwealth v. Simeone (Pa.Super.1972), 222 Pa.Super. 376, 294 A.2d 921.

The Cleveland Municipal Court did not have jurisdiction to try the appellees on the charge of petty theft in the absence of any complaint charging such offense; therefore, their claim of double jeopardy must fall.

When the appellees were brought before the Municipal Court for their preliminary hearing, they were charged with robbery, a felony...