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State v. Francis2/7/2003
lead him to suspect that Francis' driving was impaired; (3) Kinn admitted that the HGN was not performed in accordance with the rules; (4) Kinn did not know when or if the PBT had been calibrated and was in working order prior to using it; (5) Kinn had changed critical entries on the citation and the 2255 from after Francis had signed them; and (6) one of the entries subsequently added to the form was the time of the alleged offense which is crucial evidence. Based upon these findings, the trial court concluded that Kinn had a valid reason for the initial stop. However, the trial court held that Kinn did not have a valid reason to proceed any further in questioning Francis' driving abilities. The trial court then ordered that the case be dismissed. It is from this judgment that the State raises the following assignments of error.
. "The trial court erred in ruling that it is an infringement on the rights of a defendant for a state trooper to have added the time of a traffic stop after the defendant had signed and received the `completed' paperwork."
. "The trial court erred in ruling that the order of a state trooper for a driver to exit the vehicle after the driver was lawfully detained, is unreasonable, and thus a violation of the Fourth amendment of the Constitution."
. This court notes that the only motion before the trial court for ruling in this case was a motion to suppress. The trial court sua sponte converted the motion to suppress to a motion to dismiss the complaint and granted this motion. The State fails to raise this issue in its brief, but instead challenges the suppression of the evidence. Rather than deciding the appropriateness of a motion that has not yet been ruled upon by the trial court, we consider the appropriateness of dismissing the charges.
. In State v. Hamilton (1994), 97 Ohio App.3d 648, 647 N.E.2d 238, this court addressed a similar issue. In Hamilton, no motion to suppress had been filed. At the arraignment, the trial court entered a finding of not guilty. The trial court's decision was based upon its finding that the officer had no right to conduct the search. We held as follows:
. "It is well established that when:
. "`* * * motion to suppress is granted, it is not for the trial court to determine the sufficiency of the state's evidence to proceed with the prosecution and hence enter a judgment of acquittal. Rather, the state must be permitted to determine whether it will seek a stay of proceedings in order to exercise its right of appeal pursuant to [Crim.R. 12(K)], or alternatively to proceed to a final verdict or judgment. The choice is that of the prosecution.' State v. Fraternal Order of Eagles Aerie 0337 Buckeye (1991), 58 Ohio St.3d 166, 169, 569 N.E.2d 478, 481."
. "We therefore hold that it was error for the trial court to indirectly rule on the admissibility of the state's evidence by granting a final judgment of acquittal." Hamilton, supra at 651."
. In this case, the trial court ruled on a motion to dismiss rather than the motion to suppress. Based upon the ruling in Hamilton, we find this to be error. Because the State's assignments of error are directed only to the suppression of evidence, they are not yet properly before this court and we do not address them.
. The judgment of the Municipal Court of Hardin County is reversed and remanded to that court for further proceedings according to law. Judgment reversed.
WALTERS and SHAW, JJ., concur.
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