THE STATE EX REL. BEVINS, APPELLANT, v. COOPER, JUDGE, APPELLEE.
No. 2013-1118
Supreme Court of Ohio
Submitted December 10, 2013—Decided February 20, 2014
[Cite as State ex rel. Bevins v. Cooper, 138 Ohio St.3d 275, 2014-Ohio-544.]
CONCLUSION
{¶ 61} We hold that an order denying a motion to dismiss on double-jeopardy grounds is a final, appealable order. Thus, the trial court‘s denial of Anderson‘s motion to dismiss was a final, appealable order. We therefore affirm the order of the court of appeals and remand the cause to that court to consider Anderson‘s appeal on its merits.
Order affirmed.
PFEIFER, O‘DONNELL, LANZINGER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
Paul J. Gains, Mahoning County Prosecuting Attorney, and Ralph M. Rivera, Assistant Prosecuting Attorney, for appellant.
John B. Juhasz, for appellee.
Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant Public Defender, urging affirmance for amicus curiae, Office of the Ohio Public Defender.
{¶ 1} We affirm the Hamilton County Court of Appeals’ dismissal of appellant Andrew Bevins Jr.‘s petition for writs of mandamus and/or prohibition.
{¶ 2} Bevins was tried in 2003 on charges of aggravated burglary and rape. The trial ended in mistrial due to a hung jury. In 2005, Judge Ethna M. Cooper presided over the retrial, in which Bevins was convicted by a jury on both counts.
{¶ 3} In Bevins‘s direct appeal from the 2005 convictions, the court of appeals remanded for resentencing, but affirmed the convictions. State v. Bevins, 1st Dist. Hamilton No. C-050754, 2006-Ohio-6974, 2006 WL 3825141. Bevins unsuccessfully appealed to this court. State v. Bevins, 117 Ohio St.3d 1437, 2008-Ohio-1279, 883 N.E.2d 456 (denying motion for leave to file delayed appeal).
{¶ 4} In this case, Bevins asked the court of appeals to issue a writ ordering immediate release or a new trial, alleging that the 2005 retrial was “jurisdictionally unauthorized” because in 2003 the trial court had discharged the jury without stating the reasons for the discharge on the journal, as required by
{¶ 5} A criminal defendant, under the Fifth Amendment to the United States Constitution, generally has the right not to be put in jeopardy twice for the same offense. State v. Gunnell, 132 Ohio St.3d 442, 2012-Ohio-3236, 973 N.E.2d 243, ¶ 25, citing Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The Double Jeopardy Clause affords a criminal defendant a “‘valued right to have his trial completed by a particular tribunal.‘” Oregon v. Kennedy, 456 U.S. 667, 671-672, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949).
{¶ 6} However, as the Gunnell court pointed out, the right is not without exception. The prosecutor can justify a mistrial and retrial under the Double Jeopardy Clause of the Fifth Amendment if he can demonstrate “manifest necessity” for the mistrial. Gunnell at ¶ 25, citing Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).
{¶ 7} “While other situations have been recognized * * * as meeting the ‘manifest necessity’ standard, the hung jury remains the prototypical example.” Oregon v. Kennedy at 672, citing Arizona v. Washington at 509; Illinois v. Somerville, 410 U.S. 458, 463, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). Reflecting this exception,
{¶ 9} Moreover, Bevins had available to him other adequate legal remedies by way of appeal, and mandamus and prohibition will not lie where there is an adequate remedy at law. State ex rel. Ervin v. Barker, 136 Ohio St.3d 160, 2013-Ohio-3171, 991 N.E.2d 1146, ¶ 9-10. As explained above, he could have filed a
{¶ 10} As Bevins had adequate remedies at law, he is not entitled to a writ, and we affirm.
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, LANZINGER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
Andrew Bevins Jr., pro se.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for appellee.