State v. Bistricky

Ohio Court of Appeals

State v. Bistricky

584 N.E.2d 75, 66 Ohio App. 3d 395, 1990 Ohio App. LEXIS 5999

CourtOhio Court of Appeals

DecidedAugust 10, 1990

DocketNos. 57135, 57136, 57137, 57138 and 57139.

StatusPublished

Cited by59 cases

This text of 584 N.E.2d 75 (State v. Bistricky) 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.

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State v. Bistricky, 584 N.E.2d 75, 66 Ohio App. 3d 395, 1990 Ohio App. LEXIS 5999 (Ohio Ct. App. 1990).

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Opinion

Per Curiam.

This cause is before this court upon remand by the Supreme Court of the state’s motion for leave to appeal which had been previously denied by this court. See State v. Bistricky (1990), 51 Ohio St.3d 157, 555 N.E.2d 644.

In this criminal case against five Cleveland police officers charged with selling or offering to sell drugs, the trial court, at the close of the state’s case, *397 granted defendants’ motion for acquittal pursuant to Crim.R. 29. The state conceded that the principles of double jeopardy prohibited the retrial of the defendants, but argued for a consideration of the trial court rulings pursuant to R.C. 2945.67(A). The court of appeals denied the state’s motion for leave to appeal.

In its reversal opinion, the Supreme Court stated:

“ * * * We therefore hold that a court of appeals has discretionary authority pursuant to R.C. 2945.67(A) to decide whether to review substantive law rulings made in a criminal case which results in a judgment of acquittal so long as the verdict itself is not appealed. It is not clear to us, upon reviewing the court of appeals’ reason for denying the motion for leave to appeal, that the court of appeals exercised that discretion.

“We, therefore, reverse the judgment of the court of appeals to the extent that it found no authority, pursuant to R.C. 2945.67(A), to consider the state’s appeal and remand the cause to that court to exercise its discretion to decide whether it will accept or decline review of the matters of substantive law presented.” Id., 51 Ohio St.3d at 160, 555 N.E.2d at 646.

In keeping with this mandate we decline to review any matters of substantive law presented. The duty of this court is to decide actual controversies between the parties and to enter judgments capable of enforcement. We are not required to give mere advisory opinions or to rule on questions of law which cannot affect the matters in issue in the case before us. In the instant case the question of mootness has been made much stronger by virtue of the fact that the Ohio General Assembly has enacted legislation effective April 11, 1990, which substantially amends the pertinent criminal statute, R.C. 3719.14(B). An advisory opinion on the statute as it was at the time of trial and prior to amendment would serve no purpose and would constitute a waste of judicial time.

State’s motion for leave to appeal is denied.

So ordered.

Krupansky, Ann McManamon and John V. Corrigan, JJ., concur.

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Per Curiam.

This cause is before this court upon remand by the Supreme Court of the state’s motion for leave to appeal which had been previously denied by this court. See State v. Bistricky (1990), 51 Ohio St.3d 157, 555 N.E.2d 644.

In this criminal case against five Cleveland police officers charged with selling or offering to sell drugs, the trial court, at the close of the state’s case, *397 granted defendants’ motion for acquittal pursuant to Crim.R. 29. The state conceded that the principles of double jeopardy prohibited the retrial of the defendants, but argued for a consideration of the trial court rulings pursuant to R.C. 2945.67(A). The court of appeals denied the state’s motion for leave to appeal.

In its reversal opinion, the Supreme Court stated:

“ * * * We therefore hold that a court of appeals has discretionary authority pursuant to R.C. 2945.67(A) to decide whether to review substantive law rulings made in a criminal case which results in a judgment of acquittal so long as the verdict itself is not appealed. It is not clear to us, upon reviewing the court of appeals’ reason for denying the motion for leave to appeal, that the court of appeals exercised that discretion.

“We, therefore, reverse the judgment of the court of appeals to the extent that it found no authority, pursuant to R.C. 2945.67(A), to consider the state’s appeal and remand the cause to that court to exercise its discretion to decide whether it will accept or decline review of the matters of substantive law presented.” Id., 51 Ohio St.3d at 160, 555 N.E.2d at 646.

In keeping with this mandate we decline to review any matters of substantive law presented. The duty of this court is to decide actual controversies between the parties and to enter judgments capable of enforcement. We are not required to give mere advisory opinions or to rule on questions of law which cannot affect the matters in issue in the case before us. In the instant case the question of mootness has been made much stronger by virtue of the fact that the Ohio General Assembly has enacted legislation effective April 11, 1990, which substantially amends the pertinent criminal statute, R.C. 3719.14(B). An advisory opinion on the statute as it was at the time of trial and prior to amendment would serve no purpose and would constitute a waste of judicial time.

State’s motion for leave to appeal is denied.

So ordered.

Krupansky, Ann McManamon and John V. Corrigan, JJ., concur.

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Bluebook (online)

584 N.E.2d 75, 66 Ohio App. 3d 395, 1990 Ohio App. LEXIS 5999, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bistricky-ohioctapp-1990.

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