State v. Wallace, 74-653

• Decision Date: 02 July 1975
• Docket Number: No. 74-653,74-653
• Citation: 72 O.O.2d 1,330 N.E.2d 697,43 Ohio St.2d 1
• Parties: , 72 O.O.2d 1 The STATE of Ohio, Appellant, v. WALLACE, Appellee.
• Court: Ohio Supreme Court

Page 1

43 Ohio St.2d 1

330 N.E.2d 697, 72 O.O.2d 1

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

No. 74-653.

Supreme Court of Ohio.

July 2, 1975.

Syllabus by the Court

A motion for leave to appeal by the state in a criminal case shall be governed by the procedural requirements of App.R. 5 and the time requirements of App.R. 4(B).

On December 7, 1973, a criminal complaint was filed in the Findlay Municipal Court against the appellee, M. Neil Wallace, charging him with three separate violations of R.C. 1509.12 (failure to plug unproductive wells). Thereafter, appellee filed a motion to dismiss the complaint, alleging that R.C. 1509.12 was unconstitutional. The Municipal Court granted appellee's motion, and dismissed the complaint.

Appellant, the State of Ohio, filed a timely notice of appeal, pursuant to App.R. 4(B), but failed to comply with R.C. 2945.67 through 2945.70, which require the state to obtain leave to appeal in criminal cases. The Court of Appeals dismissed the appeal, holding that appellant's failure to follow the statutory procedure deprived that court of jurisdiction.

The cause is now before this court pursuant to the allowance of a motion to certify the record, and as an appeal as of right.

William J. Brown, Atty. Gen., and Frederic R. Kass, Columbus, for appellant.

Drake, Phillips, Goetz, Kuenzli & Clark and William E. Clark, Findlay, for appellee.

PAUL W. BROWN, Justice.

In State v. Hughes (1975), 41 Ohio St.2d 208, 324 N.E.2d 731, this court held that App.R. 4(B) did not grant the state an appeal as of right in criminal cases. The holding was grounded upon our conclusion that the state's right of appeal was substantive, could originate only in a legislative grant, and that the grant apparent in R.C. 2945.67 through 2945.70 was dependent upon an application for leave to appeal being allowed by the appellate court.

The failure of the state, in Hughes and in the present case, to comport the procedures of the new appellate rules with the requisite statutory language is understandable, for although R.C. 2945.67 through 2945.70 are facially procedural, their enactment constituted a substantive legislative grant giving the state a right of appeal in criminal cases, absent which such right of appeal would not exist. Hughes, supra, at 210, 324 N.E.2d 731. Substantively, the right does not now exist except upon the allowance of leave to appeal by the appellate court.

In all other respects, the procedures outlined by R.C. 2945.67 through 2945.70 are superseded by the requirements of the appellate rules. At the time those rules were promulgated, App.R. 5 (appeals by leave of court in criminal cases) was designed to define the procedures to be followed by a defendant when an appeal as of right under App.R. 4(B) had been lost, and leave of court to appeal became necessary. In light of Hughes, we now hold that App.R. 5(A) is applicable to appeals by the state in criminal cases.

As applied to such appeals, App. 5(A) may properly be restated to read:

'(In an appeal by the state in a criminal case), * * * a motion for leave to appeal shall be filed with the court of appeals * * * setting forth the errors which the movant claims to have occurred in the proceedings of the trial court. The motion shall be accompanied by affidavits, or by such parts of the record upon which the movant relies, to show the probability that the errors claimed did in fact occur, and by a brief or memorandum of law in support of the movant's claims. Concurrently with the filing of the motion the movant shall file with the clerk of the trial court a notice of appeal in the form prescribed by Rule 3 and file a copy of the notice of appeal in the court of appeals. The movant shall also furnish a copy of his motion and a copy of the notice of appeal to the clerk of the court of appeals who thereupon shall serve the notice of appeal and a copy of the motion for leave to appeal upon the attorney for the * * * (defendant), who may, within thirty days from the filing of the motion, file such affidavits, parts of the record and brief or memorandum of law to refute the claims of the movant.'

We also hold that...