{¶ 2} On May 25, 2003, appellant assaulted the victim, Jamie O'Neil, by striking him on the arm with a baseball bat. Mr. O'Neil suffered a broken arm from the attack. Thereafter, the state charged appellant with one count of assault, a first degree misdemeanor. On July 28, 2003, appellant entered a plea of no contest to the assault charge. The trial court found appellant guilty and sentenced him accordingly.
{¶ 3} Thereafter, appellant appealed to this Court. In State v.Smyers, Muskingum App. No. CT03-0039,
{¶ 4} In Smyers I, we did not remand this matter to the trial court. However, following our reversal, this matter was rescheduled for a pre-trial conference. At the pre-trial conference, the trial court dismissed Case No. CRB0300399 on the basis that it lacked jurisdiction to proceed because our memorandum opinion and judgment entry did not remand this matter to the trial court.
{¶ 5} Subsequently, on April 20, 2004, the state re-filed the original assault charge under Case No. CRB0400260. Appellant filed a motion to dismiss on May 10, 2004. By judgment entry dated June 25, 2004, the trial court denied appellant's motion to dismiss concluding the reversal inSmyers I was not based upon insufficiency of the evidence, but solely upon procedural error by the trial court in accepting appellant's no contest plea. Thus, the trial court concluded jeopardy did not attach. Thereafter, on August 9, 2004, appellant entered a no contest plea and the trial court imposed sentence equal to that rendered in Case No. CRB0300399, with credit for time served and monies paid.
{¶ 6} Appellant timely filed a notice of appeal and sets forth the following assignments of error for our consideration:
{¶ 7} "I. The court erred when it allowed a new case to be brought against the defendant in violation of the constitutional prohibition against double jeopardy.
{¶ 8} "II. The county court had no jurisdiction to hear the new case while jurisdiction remained with this court.
{¶ 9} "III. The county court erred by forcing the defendant to be put in jeopardy twice when it assumed jurisdiction on a case that had been reversed for insufficient evidence."
{¶ 11} The
{¶ 12} In the case sub judice, appellant contends the state is not permitted to charge him with the same criminal offense a second time because jeopardy attached when we reversed his conviction in Case No. CRB0300399. The state maintains the omission of sufficient evidence at appellant's plea hearing, in Case No. CRB0300399, was a procedural defect and therefore, jeopardy did not attach. The state's argument focuses on the distinction between trial error and evidentiary insufficiency and how this distinction impacts the Double Jeopardy Clause of the
{¶ 13} In Burks v. United States (1978),
{¶ 14} "In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished. [Citations omitted.]
{¶ 15} "The same cannot be said when a defendant's conviction has been overturned due to a failure of proof at trial, which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble. Moreover, such an appellate reversal means that the government's case was so lacking that it should not have even been submitted to the jury. Since we necessarily afford absolute finality to a jury's verdict of acquittal — no matter how erroneous its decision — it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty." (Emphasis sic.) Id. at 15-16.
{¶ 16} In its judgment entry denying appellant's motion to dismiss, the court specifically held that the reversal in Case No. CT03-0039 "* * * was not based on insufficiency of the evidence. It was based solely on a procedural defect on behalf of the Court (trial error)." Judgment Entry, June 25, 2004, at 1. In Smyers I, we explained that "[p]ursuant to R.C.
{¶ 17} For purposes of this appeal, we find the failure to provide the "explanation of circumstances" was not trial error, but instead resulted in insufficient facts to support a finding of guilt. If a judge does not find sufficient facts to support a finding of guilt, he or she may dismiss the charge or find the defendant guilty of a lesser included offense which is shown by those alleged facts. State v. Thorpe (1983),
{¶ 18} "Under R.C.
{¶ 19} Thus, we conclude double jeopardy attached when we reversed this matter on the basis of insufficient evidence for failure to comply with R.C.
{¶ 20} Appellant's First Assignment of Error is sustained. Appellant's Second and Third Assignments of Error are moot based upon our disposition of appellant's First Assignment of Error.
By: Wise, J. Farmer, P.J., and Edwards, J., concur.
Notes
"A plea to a misdemeanor offense of `no contest' or words of similar import shall constitute a stipulation that the judge or magistrate may make a finding of guilty or not guilty from the explanation of the circumstances of the offense. If a finding of guilty is made, the judge or magistrate shall impose the sentence or continue the case for sentencing accordingly. A plea of `no contest' or words of similar import shall not be construed as an admission of any fact at issue in the criminal charge in any subsequent civil or criminal action or proceeding."