THE STATE OF OHIO, APPELLEE, v. BASSHAM, APPELLANT.
No. 00-1517
SUPREME COURT OF OHIO
Decided February 27, 2002.
94 Ohio St.3d 269 | 2002-Ohio-797
Appellate procedure—Motion for clarification of a final order does not affect the time requirements for filing a notice of appeal. Submitted October 17, 2001 at the Greene County Session. APPEAL from the Court of Appeals for Greene County, No. 2000CA29.
A motion for clarification of a final order does not affect the time requirements for filing a notice of appeal.
FRANCIS E. SWEENEY, SR., J.
{¶ 1} At about 1:45 a.m. on September 3, 1999, Officer Joseph Topiah of the Beavercreek Police Department observed appellant, Brian J. Bassham, commit a traffic offense. After stopping appellant‘s vehicle, Officer Topiah detected a slight odor of alcohol coming from appellant‘s mouth and noted that appellant‘s eyes were glassy and bloodshot. Based on these initial observations, he gave appellant a series of field sobriety tests. After the officer observed appellant fail one of these tests, he decided to arrest appellant. At the station, appellant was given a breath-alcohol-content test (“BAC“). Appellant was later charged with operating a vehicle while under the influence of alcohol and with a prohibited breath-alcohol content in violation of
{¶ 2} On October 5, 1999, appellant moved to suppress evidence. After a hearing on the motion, a magistrate determined that the officer was justified in
{¶ 3} The issue is whether the state‘s appeal was timely filed. We find that the appeal was untimely and that the court of appeals was without jurisdiction to hear it. Therefore, we vacate the judgment of the court of appeals and dismiss the cause.
{¶ 4} The parties dispute which order should have been appealed. Appellant argues that the appeal should have been taken from the February 1 order. Since the state neglected to file a notice of appeal within seven days of this order, appellant maintains that the court was without jurisdiction to consider this appeal. However, the state asserts that there was no final appealable order until the state certified that it was one pursuant to former
{¶ 5} Both
“(A) A prosecuting attorney * * * may appeal as a matter of right any decision of a trial court in a criminal case * * * which decision grants * * * a motion to suppress evidence * * *.”
{¶ 6} Former
“(J) Appeal by state. When the state takes an appeal as provided by law from an order suppressing or excluding evidence, the prosecuting attorney shall certify that: (1) the appeal is not taken for the purpose of delay; and (2) the ruling on the motion or motions has rendered the state‘s proof with respect to the pending charge so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed.”
{¶ 7} A final order is any order that in effect determines the case. State v. Davidson (1985), 17 Ohio St.3d 132, 134, 17 OBR 277, 279, 477 N.E.2d 1141, 1144. In State v. Malinovsky (1991), 60 Ohio St.3d 20, 22, 573 N.E.2d 22, 24, we recognized that where an evidentiary ruling destroys the state‘s case, the ruling is in essence a final order from which the state may appeal. Former
{¶ 8} The state‘s position that the appeal time did not start running until the state certified the case would impermissibly allow the state to determine the time limits for its appeal and is contrary to the intended scope of former
{¶ 9} The February 1 order clearly states that the observations of the officer and the BAC results were suppressed. This broad and unequivocal language destroyed the state‘s ability to prosecute the case. Without the only eyewitness‘s observations and the test results, there was nothing left to try. Because the state failed to timely avail itself of its limited appeal rights after the judgment was entered, the court below lacked jurisdiction to hear the appeal. See State v. Buckingham (1980), 62 Ohio St.2d 14, 16, 16 O.O.3d 8, 10, 402 N.E.2d 536, 538.
{¶ 10} However, in an apparent attempt to circumvent the mandatory language of former
{¶ 12} In Pitts, this court held that under the Ohio Rules of Civil Procedure there was no provision for a motion for reconsideration after a final judgment in the trial court. We also determined that such a motion is a nullity, the filing of which does not affect the time requirements for filing a notice of appeal.
{¶ 13} In Flynn, the same court of appeals as in the case at bar applied Pitts and found that it lacked jurisdiction over an appeal challenging a trial court‘s ruling on a motion for reconsideration of a suppression order. The appellate court should have followed its own decision and ruled that the motion for clarification did not toll the time within which the prosecution should have filed its appeal.
{¶ 14} Accordingly, we hold that a motion for clarification of a final order does not affect the time requirements for filing a notice of appeal. Thus, the appellate court was without jurisdiction to hear the appeal. If the state believed that the original suppression order was a misapplication of the law or needed further refinement, it was still obligated to file its notice of appeal within seven days of that order. A motion for clarification, filed thirty-four days out of time, cannot extend that time. Accordingly, the judgment of the court of appeals is reversed and the cause is dismissed.
Judgment reversed and cause dismissed.
MOYER, C.J., DOUGLAS, PFEIFER and LUNDBERG STRATTON, JJ., concur.
COOK, J., concurs in syllabus and judgment.
RESNICK, J., concurs in judgment.
ALICE ROBIE RESNICK, J., concurring in judgment.
{¶ 15} Each appeal certified by the state pursuant to
{¶ 16} When a trial court issues an order suppressing evidence in a criminal case, the onus is on the prosecutor to determine whether the remaining evidence is enough for effective prosecution. If the prosecutor determines that effective
{¶ 17} The majority opinion, in equating an order to suppress evidence that is subject to appeal under former
{¶ 18} In State v. Bertram (1997), 80 Ohio St.3d 281, 283-284, 685 N.E.2d 1239, 1241, this court recognized the significance of the word “certify” in former
{¶ 19} In this case, there is no question that the trial court‘s ruling of February 1, 2000, destroyed the state‘s ability to effectively prosecute. It is clear that this original suppression order was broader than was the order of March 15, 2000, on the state‘s motion for clarification. If the ruling of March 15 destroyed the state‘s ability to prosecute, as the prosecution certified after that ruling, the order of February 1 destroyed the ability to prosecute to an even greater extent. For this reason, I agree with the majority that based upon the facts of this case, the February 1 order triggered the seven-day period provided in former
{¶ 20} In this case there is no question that the prosecutor could have made the certification required by former
{¶ 21} In most cases involving an appeal from an order whose finality is in question, an appeal can be filed as a provisional safeguard. In those typical cases, the appeal that turns out to have been premature or unnecessary is simply dropped and the case continues in the trial court. However, a
{¶ 22} Consequently, I believe that there are situations in which a motion for clarification of an order suppressing evidence should extend the time for filing a notice of appeal. The seven-day period for filing an appeal pursuant to
Joseph W. Stadnicar, Beavercreek Prosecutor, for appellee.
Michael A. Buckwalter, for appellant.
W. Andrew Hasselbach, urging reversal for amicus curiae, Ohio Association of Criminal Defense Lawyers.
Notes
“The appeal from an order suppressing or excluding evidence shall not be allowed unless the notice of appeal and the certification by the prosecuting attorney are filed with the clerk of the trial court within seven days after the date of the entry of the judgment or order granting the motion. Any appeal taken under this rule shall be prosecuted diligently.”