City of Middletown v. Jackson

Ohio Court of Appeals

City of Middletown v. Jackson

457 N.E.2d 898, 8 Ohio App. 3d 431, 8 Ohio B. 556, 1983 WL 4256, 1983 Ohio App. LEXIS 10978

CourtOhio Court of Appeals

DecidedJanuary 12, 1983

DocketCA81-11-0117

StatusPublished

Cited by10 cases

This text of 457 N.E.2d 898 (City of Middletown v. Jackson) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

City of Middletown v. Jackson, 457 N.E.2d 898, 8 Ohio App. 3d 431, 8 Ohio B. 556, 1983 WL 4256, 1983 Ohio App. LEXIS 10978 (Ohio Ct. App. 1983).

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Per Curiam.

On July 13, 1981, Dalen Jackson, husband of appellant, signed an affidavit in the Middletown Municipal Court charging appellant, Vicki Jackson, with felonious assault. The offense was allegedly committed on July 11,1981. The case was withdrawn at the request of the prosecution.

On August 3,1981, another complaint was filed against appellant based upon the same incident. This case was also withdrawn.

On September 11, 1981, a third complaint was filed against appellant relative to the same incident. Appellant filed a motion to dismiss based upon an alleged *432 failure to afford appellant a speedy trial as required by R.C. 2945.71. The trial court denied the motion and included in its entry Civ. R. 54(B) language in an attempt to allow an immediate appeal. Appellant filed a notice of appeal from the denial of her motion.

We hold that the order from which appellant appealed is not a final appealable order. First, we believe that Civ. R. 54(B) has no application to criminal cases. Further, we feel that the order appealed from is not inherently a final order. State v. Cinema X Bookstore (1976), 49 Ohio App. 2d 164 [3 O.O.3d 218]; State v. Lile (1974), 42 Ohio App. 2d 89 [71 O.O.2d 524]. Allowance of appeals from interlocutory criminal orders would result in piecemeal appeals that would ultimately delay and impede criminal justice administration.

In State v. Eberhardt (1978), 56 Ohio App. 2d 193 [10 O.O.3d 197], the court held that denial of a motion to dismiss upon the issue of speedy trial was a final appealable order. Eberhardt, however, is clearly distinguishable from the case sub judice because in Eberhardt the denial of the motion to dismiss was followed by a nolle prosequi. The Eberhardt court noted that the denial of a motion to dismiss is not ordinarily a final appealable order, but stated that since it was followed by a nolle prosequi the case was final and appealable.

This court is aware of State v. Thomas (1980), 61 Ohio St. 2d 254 [15 O.O.3d 262], certiorari denied (1980), 449 U.S. 852, which held that the overruling of a motion to dismiss based upon double jeopardy is a final appealable order. We decline to extend Thomas to allow an interlocutory appeal in the case sub judice.

In accordance with this decision the appeal is hereby dismissed and the case is remanded to the Middletown Municipal Court for further proceedings according to law.

Appeal dismissed.

HendRickson, P.J., and Jones, J., concur. Koehler, J., dissents.

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Per Curiam.

On July 13, 1981, Dalen Jackson, husband of appellant, signed an affidavit in the Middletown Municipal Court charging appellant, Vicki Jackson, with felonious assault. The offense was allegedly committed on July 11,1981. The case was withdrawn at the request of the prosecution.

On August 3,1981, another complaint was filed against appellant based upon the same incident. This case was also withdrawn.

On September 11, 1981, a third complaint was filed against appellant relative to the same incident. Appellant filed a motion to dismiss based upon an alleged *432 failure to afford appellant a speedy trial as required by R.C. 2945.71. The trial court denied the motion and included in its entry Civ. R. 54(B) language in an attempt to allow an immediate appeal. Appellant filed a notice of appeal from the denial of her motion.

We hold that the order from which appellant appealed is not a final appealable order. First, we believe that Civ. R. 54(B) has no application to criminal cases. Further, we feel that the order appealed from is not inherently a final order. State v. Cinema X Bookstore (1976), 49 Ohio App. 2d 164 [3 O.O.3d 218]; State v. Lile (1974), 42 Ohio App. 2d 89 [71 O.O.2d 524]. Allowance of appeals from interlocutory criminal orders would result in piecemeal appeals that would ultimately delay and impede criminal justice administration.

In State v. Eberhardt (1978), 56 Ohio App. 2d 193 [10 O.O.3d 197], the court held that denial of a motion to dismiss upon the issue of speedy trial was a final appealable order. Eberhardt, however, is clearly distinguishable from the case sub judice because in Eberhardt the denial of the motion to dismiss was followed by a nolle prosequi. The Eberhardt court noted that the denial of a motion to dismiss is not ordinarily a final appealable order, but stated that since it was followed by a nolle prosequi the case was final and appealable.

This court is aware of State v. Thomas (1980), 61 Ohio St. 2d 254 [15 O.O.3d 262], certiorari denied (1980), 449 U.S. 852, which held that the overruling of a motion to dismiss based upon double jeopardy is a final appealable order. We decline to extend Thomas to allow an interlocutory appeal in the case sub judice.

In accordance with this decision the appeal is hereby dismissed and the case is remanded to the Middletown Municipal Court for further proceedings according to law.

Appeal dismissed.

HendRickson, P.J., and Jones, J., concur. Koehler, J., dissents.

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Bluebook (online)

457 N.E.2d 898, 8 Ohio App. 3d 431, 8 Ohio B. 556, 1983 WL 4256, 1983 Ohio App. LEXIS 10978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-middletown-v-jackson-ohioctapp-1983.

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