State v. Morgan, Unpublished Decision (8-3-2006)

Ohio Court of Appeals

State v. Morgan, Unpublished Decision (8-3-2006)

2006 Ohio 3947

CourtOhio Court of Appeals

DecidedAugust 3, 2006

DocketNo. 87293.

StatusUnpublished

This text of 2006 Ohio 3947 (State v. Morgan, Unpublished Decision (8-3-2006)) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law.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State v. Morgan, Unpublished Decision (8-3-2006), 2006 Ohio 3947 (Ohio Ct. App. 2006).

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Opinions

JOURNAL ENTRY and OPINION {¶ 1} Plaintiff-appellant, State of Ohio, appeals from the trial court's order that dismissed the felonious assault and domestic violence charges against defendant-appellee, Lance Morgan, for want of prosecution due to the victim's repeated failure to appear for trial. In the absence of language to the contrary, such dismissal is presumed to be without prejudice and, therefore, not a final, appealable order. State v. Brown, Cuyahoga App. No. 84229, 2004-Ohio-5587, citing State v.Fleming (Dec. 7, 2000), Cuyahoga App. Nos. 77323, 77324;Cleveland v. Stifel (Sept. 2, 1999), Cuyahoga App. No. 75761, citing State v. Dixon (1984), 14 Ohio App.3d 396.

Appeal dismissed.

It is ordered that appellee recover of appellant his costs herein taxed.

It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Rocco, J., concurs. (See attached separate concurringopinion.) McMonagle, J., Dissents. (See attached separate dissentingopinion.)

DISSENTING OPINION

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JOURNAL ENTRY and OPINION {¶ 1} Plaintiff-appellant, State of Ohio, appeals from the trial court's order that dismissed the felonious assault and domestic violence charges against defendant-appellee, Lance Morgan, for want of prosecution due to the victim's repeated failure to appear for trial. In the absence of language to the contrary, such dismissal is presumed to be without prejudice and, therefore, not a final, appealable order. State v. Brown, Cuyahoga App. No. 84229, 2004-Ohio-5587, citing State v.Fleming (Dec. 7, 2000), Cuyahoga App. Nos. 77323, 77324;Cleveland v. Stifel (Sept. 2, 1999), Cuyahoga App. No. 75761, citing State v. Dixon (1984), 14 Ohio App.3d 396.