State v. Hughes

324 N.E.2d 731, 41 Ohio St. 2d 208, 70 Ohio Op. 2d 395, 1975 Ohio LEXIS 447

• Court: Ohio Supreme Court
• Decided: March 19, 1975
• Docket: No. 73-1037
• Status: Published

Opinions

CoRRigaN, J.

Appellant maintains in a single proposition of law that:

“The provisions of Ohio Revised Code, Section 2945.68, requiring the permission of the Court of Appeals before a bill of exceptions may be filed, are procedural in nature and are inconsistent with, and superseded by, the Rules of Appellate Procedure,, ’ ’

Appellant, in this case, filed a notice of appeal in the trial court pursuant to App. R. 4(B). App. R. 4(B) permits the prosecution to appeal as of right in criminal cases. This rule, as applicable to appeals by the prosecution, is in conflict with R. C. 2945.68.

R. C. 2945.68 permits a prosecuting attorney, solicitor, or the Attorney General to present a bill of exceptions in a criminal action to the Court of Appeals or the Supreme Court. The statute, however, grants the Court of Appeals and the Supreme Court discretion in determining whether to allow the filing of a bill of exceptions by the prosecution.

Appellant argues that the provisions of R. C. 2945.67 and 2945.70 are merely procedural in nature and, as such, have been superseded by App. R. 4(B). We disagree.

Section 5(B) of Article IY of the Ohio Constitution provides, in part:

‘‘The Supreme Court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right. * * * All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. ’ ’

It was pursuant to this constitutional provision that the Appellate Rules were adopted by the Ohio Supreme Court, effective July 1, 1971. App. R. 1 provides that the rules govern procedure in appeals to Courts of Appeals from the trial courts of record in Ohio. Clearly, they supersede all procedural statutes in conflict with them.

R. C. 2945.68, however, grants the prosecution a substantive right of appeal which did not exist at common law prior to the adoption of Section 6 of Article IY of the Ohio Constitution (now Section 3 of Article IY), and the implementing legislation contained in R. C. 2945.67 through 2945.70 — -formerly G. C. 13446-1,13446-2,13446-3 and 13446-4. Section 3 of Article IY of the Ohio Constitution granted appellate courts, among other things, such jurisdiction as may be provided by law. R. C. 2945.67 through 2945.70 and their predecessor statutes give appellate courts specific authority to hear appeals by the prosecution. The weight of authority in this country generally opposes the right of the government to bring error in a criminal case unless permitted by statute. 2 Ohio Jurisprudence 2d 786, Appellate Review, Section 179. See, also, 2 American Jurisprudence 984, Appeal and Error, Section 227.

The effect of R. C. 2945.67 through 2945.70 is to grant jurisdiction to appellate courts to hear appeals by the prosecution in criminal cases and to create a substantive right in the prosecution to bring such appeals in the instances permitted by E. C. 2945.70 and the decisions interpreting that section.

Moreover, the right created and the jurisdiction granted by E. C. 2945.67 through 2945.70 is limited. Those sections, as well as specifying the procedure to be followed in bringing an appeal, also limit the right of appeal by granting appellate courts discretion as to which eases will be allowed for review.

App. E. 4(B), in providing an appeal as of right by the prosecution, enlarges the statutory right of appeal provided by E. C. 2945.67 through 2945.70 and abridges the right of appellate courts to exercise their discretion in allowing such appeals.

App. E. 4(B) is in conflict with a substantive statutory provision and must yield to it. The Court of Appeals was correct in dismissing the appeal by reason of the failure of appellant to file a bill of exceptions pursuant to E. C. 2945.68. The judgment of the Court of Appeals is, therefore, affirmed.

J udgment affirmed.

O’Neill, C. J., Steret, Celebrezze, W. BbowN and P. BrowN, J.J., concur.