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State v. Hooker9/29/1989
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"MR. WOOD: And in this particular case, after having found the Defendant in operation of the vehicle, the Officer made certain observations, and the Officer performed a battery of field sobriety tests that in the opinion of the City gave him the probable cause to make the arrest.
"THE COURT: I'm just going to point out to the Prosecutor on an appeal the Supreme Court would (inaudible) into this case, and all the evidence you had I know the Court of Appeals would suppress it because this was all gained as a result of unlawful arrest.
"I'm going to grant the motion to suppress-
"MR. WOOD: Your Honor, I would-
"THE COURT: --and to dismiss the complaint.
"MR. WOOD: I would--
"MR. KARCHER: Thank you, Your Honor.
"MR. WOOD: I would strongly object, Your Honor. We are here for an evidentury hearing, and you have not allowed the City to introduce any evidence.
"THE COURT: I asked you, and I said was there anything further.
"MR. WOOD: Well--
"THE COURT: The motion stands. The case is dismissed."
Clearly, the court set the motion to suppress for hearing and the prosecutor was prepared to bear his burden of going forward with evidence on the issue of whether probable cause existed for the arrest, but the court did not allow him to do so.
Based upon the foregoing, we find that the court committed reversible error by denying the state the opportunity to present evidence as to the motion to suppress. Accordingly, appellant's first, second and sixth assignments of error are found well taken.
Appellant's fourth assignment of error asserts that the court's decision was contrary to the manifest weight of the evidence. Since, however, no evidence was allowed to be presented, this assignment of error is found not well taken.
This court having found appellant's first, second and sixth assignments of error well taken, appellant's third and fifth assignments of error are rendered moot and are therefore found not well taken.
On consideration whereof, this court finds substantial justice has not been done the party complaining, and the judgment of the Sylvania Municipal Court is reversed. This case is remanded to said court for further proceedings not inconsistent with this opinion. It is ordered that appellee pay the court costs of this appeal.
Judgment reversed.
HANDWORK, P.J., and CONNORS, J., concur.
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