2014 Ohio 1396
Ohio Ct. App.2014Background
- State appeals from April 4, 2013 judgment denying Civ.R.60(B)(4) relief to vacate the November 21, 2011 dismissal of most indictment counts.
- Ohio law restricts criminal appeals; the State had a right to a direct appeal under R.C. 2945.67(A) and App.R. 5(C) but did not timely pursue it.
- Indictments (filed April 14, 2010) charged GoGo Girls Cabaret entities and individuals with offenses including promoting prostitution, money laundering, and perjury.
- November 21, 2011, Judge Curran dismissed most counts (apart from perjury); Judge D’Apolito’s suppression order had been reversed on appeal in 2012 (Wallace).
- In January 2013 the State sought Civ.R.60(B)(4) relief; the trial court denied, and the Seventh District dismissed the appeal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R.60(B)(4) may substitute for a direct appeal in criminal cases | State argues Civ.R.60(B)(4) applies via Crim.R.57(B) to challenge the dismissal. | Appellees contend Civ.R.60(B) cannot replace a direct appeal and is improper here. | Civ.R.60(B) cannot substitute for a direct appeal; appeal dismissed. |
| Whether the State had a timely right to appeal the November 21, 2011 dismissal under RC 2945.67(A) and App.R.5(C) | State contends it had an appeal as of right from the dismissal. | State failed to file timely; jurisdiction lacking. | State had a right but failed to timely file; appeal improperly invoked. |
| Whether Tate I–III and Christian control whether Civ.R.60(B) may be used to review suppression/dismissal rulings in criminal cases | State relies on civil rules flexibility to obtain relief. | These precedents limit the State’s remedies and preclude Civ.R.60(B) relief here. | Precedents foreclose Civ.R.60(B) relief as substitute for direct appeal; dismissal affirmed. |
Key Cases Cited
- State v. Tate, 179 Ohio App.3d 71 (2008-Ohio-5686) (prosecutor cannot use Civ.R.60(B) to review suppression orders; direct appeal required)
- State v. Tate, 179 Ohio App.3d 135 (2008-Ohio-5820) (Tate III; discretionary appeal requirements; no jurisdiction for late Civ.R.60(B))
- State v. Christian, 184 Ohio App.3d 1 (2009-Ohio-4811) (state's right to appeal from dismissal of part of an indictment)
- State v. Caltrider, 43 Ohio St.2d 157 (1975) (state’s limited appellate rights in criminal proceedings; strict construction)
- State v. Fisher, 35 Ohio St.3d 22 (1988) (state has no absolute right to appeal absent statute)