State v. Thomas

• Decision Date: 20 February 1980
• Docket Number: No. 79-437,79-437
• Citation: 400 N.E.2d 897,61 Ohio St.2d 254,15 O.O.3d 262
• Parties: , 15 O.O.3d 262 The STATE of Ohio, Appellee, v. THOMAS, Appellant.
• Court: Ohio Supreme Court

Page 254

61 Ohio St.2d 254

400 N.E.2d 897, 15 O.O.3d 262

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

No. 79-437.

Supreme Court of Ohio.

Feb. 20, 1980.

Syllabus by the Court

1. The overruling of a motion to dismiss on the ground of double jeopardy is a final appealable order under R.C. 2953.02 and 2505.02 (Owens v. Campbell, 27 Ohio St.2d 264, 272 N.E.2d 116, overruled).

2. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution not only protects the accused from multiple prosecutions for the same offense, but also protects the accused from multiple punishments for the same offense. (See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, and Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187.)

3. For purposes of the Double Jeopardy Clause, in deciding whether the same act or transaction constitutes a violation of two distinct statutory provisions or only one, a determination must be made as to whether each provision requires proof of a fact which the other does not. (See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306.)

4. Even though the same act or transaction may constitute a violation of two distinct statutory provisions and would permit the imposition of multiple sentences, successive prosecutions will be barred in certain circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first. (See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, and Nielsen, Petitioner, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118.)

5. An exception to the rule of Ashe v. Swenson may exist where the state is unable to proceed with one of the charges at the time of the first trial because additional facts necessary to sustain the charge have not occurred or have not been discovered despite the exercise of due diligence. (See Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187.)

6. Under the double jeopardy provisions of the United States Constitution and the Ohio Constitution, a conviction for robbery does not preclude a subsequent prosecution for involuntary manslaughter where the death of the robbery victim intervenes between the conclusion of the first trial and the initiation of the second.

Defendant-appellant, Melvin J. Thomas, was indicted for aggravated robbery for an incident that occurred on October 18, 1977. He pleaded guilty to the lesser offense of robbery on January 25, 1978, and was sentenced on February 13, 1978.

Thereafter, on April 17, 1978, the robbery victim died as a result of injuries sustained during the course of the robbery. Appellant was then indicted for involuntary manslaughter. A motion to dismiss the indictment, claiming a violation of appellant's right not to be placed twice in jeopardy, was overruled by the trial court.

An appeal was taken from the entry overruling the motion to dismiss. The Court of Appeals determined that this entry was not a final order, and dismissed the appeal. However, in dicta, the court further concluded that appellant's double jeopardy claim was without merit.

The clause is before this court upon allowance of a motion for leave to appeal.

Lee C. Falke, Pros. Atty., and Gary W. Crim, Dayton, for appellee.

Kurt R. Portmann and Steven M. Cox, Dayton, for appellant.

HOLMES, Justice.

The procedural issue presented by this appeal is whether the overruling of a motion to dismiss for former jeopardy constitutes a final appealable order. If we determine that it does, we must then address the substantive issue of whether the prosecution of appellant for involuntary manslaughter is barred by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, or by Section 10, Article I, of the Ohio Constitution. ¹

I.

A criminal defendant in Ohio who seeks to obtain review of a claim of double jeopardy prior to trial faces considerable procedural difficulties. This court has never stated with particularity the proper mode of review in such a case. In Owens v. Campbell (1971), 27 Ohio St.2d 264, 272 N.E.2d 116, this court held that an accused may adjudicate the issue of collateral estoppel by invoking the extraordinary original jurisdiction of an appellate court. However, the Owens decision failed to specify which of the five extraordinary writs was the proper vehicle to test such a claim. While this court, in Owens, reversed the Court of Appeals' denial of a writ of habeas corpus, the decision carefully avoided designating that writ as the proper remedy. To the contrary, the court noted that the appellant in that case had failed "to label correctly his invocation of the Court of Appeals' proper original jurisdiction * * *." Owens, supra, at page 268, 272 N.E.2d at page 119.

This court recognized that the writ of habeas corpus was technically inappropriate under the facts of Owens, since the appellant in that case was lawfully incarcerated on charges unrelated to the asserted issue of collateral estoppel. See Flowers v. Haskins (1971) 25 Ohio St.2d 186, 267 N.E.2d 430, certiorari denied, 403 U.S. 908, 91 S.Ct. 2216, 29 L.Ed.2d 685; Ball v. Maxwell (1965), 1 Ohio St.2d 77, 204 N.E.2d 62; McConnaughy v. Doe (1963), 174 Ohio St. 533, 190 N.E.2d 576. The granting of the writ in Owens is reasonably explicable on the ground of judicial economy.

For a time after this court's decision in Owens, it appeared that the writ of prohibition was the correct avenue by which an accused could obtain pre-trial review of a claim of former jeopardy. See In re Susi (1973), 38 Ohio App.2d 73, 74, 313 N.E.2d 422. See, also, State ex rel. Russell v. Perkins (1973), 34 Ohio St.2d 48, 295 N.E.2d 661 (by implication); State ex rel. Susi v. Flowers (1975), 43 Ohio St.2d 11, 330 N.E.2d 662, certiorari denied, 423 U.S. 1006, 96 S.Ct. 436, 46 L.Ed.2d 378 (by implication). However, this theory was seriously questioned in State ex rel. Davis v. Crush (1976) 46 Ohio St.2d 360, 363, 348 N.E.2d 725, and was finally laid to rest in the recent case of State ex rel. Wall v. Grossman (1980), 61 Ohio St.2d 4, 398 N.E.2d 789. In Wall, this court held that prohibition does not lie to test a claim of double jeopardy, because such a claim is not of a jurisdictional nature. See Annotation, 94 A.L.R.2d 1048.

It is evident that this court's holding in Owens has occasioned considerable confusion as to the proper method of obtaining review of a double jeopardy claim. Appellant urges us to re-examine Owens, particularly that portion of the decision which holds that the overruling of a motion to dismiss on the ground of former jeopardy is not a final appealable order. We agree that the time has come for a review and a clarification of this issue.

Section 3(B)(2), Article IV, of the Ohio Constitution, authorizes appellate courts to exercise such jurisdiction as may be provided by law to review "judgments or final orders" of inferior courts within their respective districts. To implement this constitutional provision, the General Assembly enacted R.C. 2953.02, which provides for review by the Court of Appeals of a "judgment or final order" in a criminal case. Although the term "final order" is not defined in R.C. 2953.02, the definition of that term contained in R.C. 2505.02 has been held to be applicable to criminal proceedings. See State v. Collins (1970), 24 Ohio St.2d 107, 108, 265 N.E.2d 261; State v. Miller (1953), 96 Ohio App. 216, 217, 121 N.E.2d 660.

As relevant to this appeal, R.C. 2505.02 states that:

"An order affecting a substantial right in an action which in effect determines the action and prevents a judgment, (or) an order affecting a substantial right made in a special proceeding * * * is a final order which may be reviewed * * *."

Appellant contends that the overruling of a motion to dismiss for former jeopardy is a final order within the meaning of R.C. 2505.02. Appellant apparently concedes the validity of this state's policy prohibiting interlocutory appeals, but argues that this court has, in the past, allowed immediate appeals from orders which affect a substantial right that cannot be preserved by an appeal after judgment.

It is clear that the Double Jeopardy Clause is a guarantee against being twice put to trial for the same offense. Abney v. United States (1977), 431 U.S. 651, 661, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651. It is equally clear that an order affecting a right of constitutional dimensions is an "order affecting a substantial right," within the contemplation of R.C. 2505.02. It would seem reasonable to conclude that some form of review prior to judgment is necessary to preserve this right. Id. at page 660, 97 S.Ct. at page 2040.

More troublesome, however, is the meaning of the term "special proceeding" embodied in R.C. 2505.02. Although this court, in State v. Collins, supra, pointed out that most modern courts have been less than precise in defining "special proceeding," it held that a pre-trial proceeding on a motion to suppress evidence is a special proceeding within the meaning of R.C. 2505.02.

We believe that a proceeding on a motion to dismiss for double jeopardy should be considered a special proceeding as well. A claim of double jeopardy raises an issue entirely collateral to the guilt or innocence of the defendant. While it is a complete defense, it is more than that, for it, in principle, bars a new trial as well as a new conviction. Additionally, an erroneous decision on a double jeopardy claim cannot be effectively reviewed after judgment within the second trial; by that time, the defendant's right has been violated.

We hold, therefore, that the overruling of a motion to dismiss on the ground of double jeopardy is a final appealable order under R.C. 2953.02 and 2505.02. Owens v. Campbell, 27 Ohio St.2d 264, 272 N.E.2d 116, is hereby overruled.

II.

We turn now to appellant's contention that his federal and state constitutional rights will be violated by the pending prosecution for...