State v. Varner
| Decision Date | 31 July 1991 |
| Docket Number | No. 15042,15042 |
| Citation | 610 N.E.2d 476,81 Ohio App.3d 85 |
| Parties | The STATE of Ohio, Appellant, v. VARNER, Appellee. |
| Court | Ohio Court of Appeals |
Philip D. Bogdanoff, Asst. Pros. Atty., Akron, for appellant.
John G. Quillin, Cuyahoga Falls, for appellee.
Defendant-appellee, Joseph P. Varner, Jr., was originally charged in the Summit County Court of Common Pleas with breaking and entering, R.C. 2911.13. He signed a bond allowing his release, but then failed to appear for his arraignment. As a result, he was further indicted on January 15, 1991 for failure to appear in violation of a recognizance bond, R.C. 2937.29.
Prior to trial, Varner moved to dismiss the indictment on this supplemental charge on the ground that he was never actually bound by a recognizance bond. The trial court agreed and this appeal follows.
In its sole assignment of error, the state maintains that a reversal is in order since Varner was duly subject to a recognizance bond and, consequently, criminally liable for his failure to appear. While we agree that the trial court's ruling was erroneous, we choose to base this decision on a more fundamental principle.
The propriety of Varner's motion to dismiss required an examination of the bond he had signed to secure his release. The Ohio Rules of Criminal Procedure, however, do not allow for "summary judgment" on an indictment prior to trial. State v. McNamee (1984), 17 Ohio App.3d 175, 17 OBR 306, 478 N.E.2d 843; Akron v. Davis (July 31, 1991), Summit App. No. 14989, unreported, 1991 WL 149743. Since Varner's claim went beyond the face of the indictment, he could present his challenge only as a motion for acquittal at the close of the state's case. Crim.R. 29(A). As a general rule, "premature declarations," such as that presented here, are strictly advisory and an improper exercise of judicial authority. Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14, 51 O.O.2d 35, 35, 257 N.E.2d 371, 372.
Were we to recognize the validity of such a procedure, trial courts would soon be flooded with pretrial motions to dismiss alleging factual predicates in criminal cases. Burglary suspects would challenge the charges against them on the grounds the "structures" entered were not "occupied," R.C. 2911.12(A), while those accused of driving while intoxicated would argue that they were not "operating a motor vehicle" at the time of the offense, R.C. 4511.19(A). Already overburdened...
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State v. Wallace
...29(A) motion for acquittal at the close of the state's case, and generally cannot be resolved prior to trial. State v. Varner, 81 Ohio App.3d 85, 610 N.E.2d 476 (1991). In this case, the trial court viewed the evidence in question and made its decision based on its interpretation of the evi......
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State v. Michael Daily, 98-LW-0158
...face of the complaint, it must be presented as a motion for acquittal under Crim.R. 29 at the close of the state's case. State v. Varner (1991), 81 Ohio App.3d 85. also, Cleveland v. Shields (1995), 105 Ohio App.3d 118, 123 (Blackmon, J., concurring), which noted that "There is no provision......
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State v. Hehr, 2005 Ohio 353 (OH 1/19/2005)
...for summary judgment or a pretrial motion to challenge the legal sufficiency of the evidence. State v. Varner 91991), 81 Ohio App.3d 85, 86, 610 N.E.2d 476, 477; Sate v. McNamee 91984), 17 Ohio App.3d 175, 17 OBR 306, 478 N.E.2d We further note that the appellant appears to have abandoned t......
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State v. Derek Brown, Todd Ebelein
... ... 1997), Lorain App. No. 97CA6660, unreported. If a motion to ... dismiss requires examination of evidence beyond the face of ... the complaint, it must be presented as a motion for acquittal ... under Crim.R. 29 at the close of the state's case ... State v. Varner (1991), 81 Ohio App.3d 85, 610 ... N.E.2d 476. See, also, Cleveland v. Shields (1995), ... 105 Ohio App.3d 118, 123, 663 N.E.2d 726 (Blackmon, J., ... concurring), which noted that `There is no provision in ... Ohio's Rules of Criminal Procedure for a motion to ... ...