State v. Bess

2012 Ohio 3333

Opinion

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO : APPEAL NO. C-110700 TRIAL NO. 11CRB-22572

Plaintiff-Appellee, :

vs. : O P I N I O N. VIRGINETTA BESS, :

Defendant-Appellant. :

:

:

Criminal Appeal From: Hamilton County Municipal Court Judgment Appealed From Is: Reversed and Charge Dismissed Date of Judgment Entry on Appeal: July 25, 2012

John Curp, City Solicitor, Charles Rubenstein, City Prosecutor, and Marva K. Benjamin, Assistant City Prosecutor, for Plaintiff-Appellee.

Jon Sinclair, for Defendant-Appellant.

Please note: This case has been removed from the accelerated calendar.

OHIO FIRST DISTRICT COURT OF APPEALS

C UNNINGHAM , Judge.

{¶1} Defendant-appellant Virginetta Bess appeals the judgment of the Hamilton County Municipal Court convicting her on the charge of possession of a vicious dog, in violation of Cincinnati Municipal Code 701-6. We reverse, because the trial court lacked subject-matter jurisdiction where the complaint was not made “under oath.”

{¶2} Bess was issued a citation for possession of a vicious dog—a pit bull—within the city limits.1 The issuing officer completed and signed the citation form, which was designed for minor-misdemeanor offenses, and filed it with the court as a formal complaint. The officer, however, failed to execute the jurat section of the form, thus the “complaint” was not made “under oath.”

{¶3} Bess entered a no-contest plea to the offense, and the trial court convicted her. She now appeals.2

{¶4} In her sole assignment of error, Bess argues that where the criminal complaint for the first-degree misdemeanor was signed but not notarized, the trial court did not acquire jurisdiction, and the judgment of conviction is a nullity. We agree.

{¶5} The procedure to invoke the subject-matter jurisdiction of the municipal court for a first-degree misdemeanor is the filing of a complaint that meets the requirements of Crim.R. 3. See Crim.R. 7(A); State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, 951 N.E.2d 1025, paragraph one of the syllabus; State v. Miller, 47 Ohio App.3d 113, 114, 547 N.E.2d 399 (1st Dist.1988).

1 This section was amended, effective May 16, 2012, but Bess was prosecuted before the amendment. 2 The city has not filed an appellate brief.

3

OHIO FIRST DISTRICT COURT OF APPEALS

{¶6} Crim.R. 3 expressly requires (1) “a written statement of the essential facts constituting the offense charged”; (2) “the numerical designation of the applicable statute or ordinance”; and (3) that the complaint “be made under oath before any person authorized by law to administer oaths.”

{¶7} In this case, the complaining officer’s signature was not notarized.

Thus, Bess’s contention that the complaint did not comport with the third requirement of Crim.R. 3 is supported by the record. Consequently, the complaint was not valid.

{¶8} In the absence of a valid charging instrument, the trial court lacked subject-matter jurisdiction. See State v. Green, 48 Ohio App.3d 121, 121-122, 548 N.E.2d 334 (11th Dist.1988). See also Miller, 47 Ohio App.3d at 114, 547 N.E.2d 399; State v. Brown, 2 Ohio App.3d 400, 402, 442 N.E.2d 475 (1st Dist.1981).

{¶9} Further, the issue of subject-matter jurisdiction cannot be waived or forfeited and can be raised at any time. Mbodji, 129 Ohio St.3d 325, 2011-Ohio- 2880, 951 N.E.2d 1025, at ¶ 10.

{¶10} Because the municipal court lacked subject-matter jurisdiction, the resulting conviction is a nullity. Green at 121-122; Miller at 114. Therefore, we sustain the assignment of error. The judgment of the trial court is reversed, and the charge against Bess is dismissed.

Judgment reversed and charge dismissed.

HILDEBRANDT, P.J., and DINKELACKER, J., concur.

Please note:

The court has recorded its own entry on the date of the release of this decision.