 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Ryan10/24/1984
KLUSMEIER, J.
On May 27, 1983 defendant-appellee, Michael F. Ryan, was arrested and charged with driving a motor vehicle while under the influence of alcohol or drugs in violation of R.Cs4511.19(A)(1) and 4511.19(A)(3). Appellee was transported to the Cincinnati Police Station, District Three, where he voluntarily submitted to an intoxilyzer test which indicated the presence of the concentration prohibited by R.C. 4511.19(A)(3). Appellee entered a not guilty plea to both charges and filed a written demand for a jury trial, in the Hamilton County Municipal Court.
Prior to trial, appellee moved the trial court for an order requiring the state to elect between the two driving under the influence charges. On October 5, 1983 the trial court granted appellee's motion and ordered the state to elect one of the two charges and to proceed to trial only on that charge.
The state filed a motion in which it requested the court to reconsider the prior order to elect. On December 29, 1983 the court denied the state's motion to reconsider and again ordered the prosecutor to elect.
On January 12, 1984 the case was called for trial. The prosecutor informed the court that the state intended to present evidence on both of the charges. At this point, the trial judge dismissed both charges for failure to comply with the court order to elect and for want of prosecution. From this judgment, the state of Ohio has taken this timely appeal pursuant to R.C. 2945.67 asserting in a single assignment of error that the lower court erred by dismissing the charges on its own motion.
Specifically, the state contends that it has a statutory right to try these two particular offenses together, absent a showing of prejudice by appellee. For the reasons outlined in this decision, we find the state's assignment of error to be well-taken.
We are initially confronted with appellee's assertion that the state has no right to appeal the lower court's dismissal. We disagree. R.C. 2945.67(A) states:
"A prosecuting attorney * * * may appeal as a matter or right any decision of a trial court in a criminal case * * * which decision grants a motion to dismiss all or any part of an indictment, complaint, or information * * *."
In a criminal case, an appeal, if proper, should be based on a judgment or final order. See R.C. 2953.02; State, ex rel. Leis, v. Outcalt (1982), 1 Ohio St.3d 147; State v. Chamberlain (1964), 177 Ohio St. 104 [29 O.O.2d 268]. A final order is one which amounts to a disposition of the cause and which affects "a substantial right in an action which in effect determines the action and prevents a judgment." R.C. 2505.02. In the instant case, the lower court dismissed the charges sua sponte, or on its own motion. As a practical matter, the lower court granted its own motion to dismiss. The court's decision amounted to a final order because it disposed of the case and prevented a judgment. We believe this dismissal is tantamount to a "decision grant a motion" under R.C. 2945.67(A) and conclude therefore that the state had the right to appeal the lower court's dismissal of the charges.
We begin by pointing out that R.C. 4511.19(A)(1) and 4511.19(A)(3) are allied offenses of similar import under R.C. 2941.25(A). State v. Scruggs (Mar. 14, 1984), Hamilton App. No. C-830429, unreported. Under Ohio law, a defendant may be charged with two allied offenses of similar import, found guilty of both charges, but may be convicted of only one. See Maumee v. Geiger (1976), 45 Ohio St.2d 238 [74 O.O.2d 380]; Scruggs, supra; State v. Clardy (Feb. 1, 1984), Hamilton App. No. C-830318, unreported. In such a circumsta
Page 1 2 3 Ohio DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|