Per Curiam.
Defendant-appellant, Thomas Ricciardi, appeals the decision of the Mahoning County Court of Common Pleas overruling his motion to suppress evidence. At issue in this case is whether the trial court’s ruling is a final order subject to immediate review under newly amended R.C. 2505.02.
On May 22, 1998, appellant was indicted on one count of driving under the influence of alcohol, in violation of R.C. 4511.19(A)(1), and one count of operating a motor vehicle with a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his breath, in violation of R.C. 4511.19(A)(3). Both counts were elevated to fourth degree felonies because of appellant’s three prior convictions of R.C. 4511.19(A) or (B) within the preceding six years of the instant offense.
On August IT, 1998, appellant filed a motion to suppress or in the alternative a motion
in Limine,
seeking to suppress the breathalyzer test results on the grounds that the test had not been conducted pursuant to agency regulations, that the test used had not been specific for ethyl alcohol, and that radio frequency interference had caused an overestimation of alcohol content. Following a hearing on September 21, 1998, the trial court overruled appellant’s motion. Thereafter, the trial court set the matter for trial, overruling appellant’s motion for a continuance and expressing its opinion that appellant had no legal right to appeal the trial court’s decision on the motion to suppress until after a final judgment on the merits had been rendered.
On October 2, 1998, appellant filed a notice of appeal and a motion to stay the trial court’s proceedings. By journal entry dated October 5, 1998, this court stated that appellant’s notice of appeal operated to divest the trial court of jurisdiction to conduct further proceedings, and granted appellant and plaintiffappellee, the state of Ohio, thirty days to submit jurisdictional memoranda on the issue of whether the trial court’s order was immediately reviewable.
Appellant argues that the trial court’s order denied appellant a provisional remedy and that appellant would not be afforded a meaningful remedy following final judgment since upon conviction he would be required to serve a mandatory prison term of no less than sixty days. According to appellant, said prison term would unconstitutionally deprive him of his freedom.
We begin our discussion by noting that historically the overruling of a motion to suppress evidence in a criminal case was not a final order subject to immediate review. See, for example,
State v. Crawley
(1994), 96 Ohio App.3d 149, 155, 644 N.E.2d 724, 728;
State v. Wetzel
(1963), 118 Ohio App. 368, 194 N.E.2d 911;
State v. Hinson
(Sept. 8, 1994), Cuyahoga App. No. 66259, unreported, 1994 WL 496658;
Cleveland v. Iacampo
(Dec. 27, 1990), Cuyahoga App. No. 57796, unreported, 1990 WL 212117;
State v. Lee
(Dec. 21, 1990), Lake App. No. 89-L-14-164, unreported, 1990 WL 212635. Appellant concedes in his notice of appeal and supporting memoranda that if a different result is to obtain herein it must be on account of the new language in R.C. 2505.02 allowing for the review of orders denying provisional remedies, subject to certain criteria.
R.C. 2505.02 as amended, effective July 22,1998, states as follows:
“(A) As used in this section:
“(1) ‘Substantial right’ means a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect.
“(2) ‘Special proceeding’ means an action or proceeding that is specially created by statute and that prior to 1853 was not denoted as an action at law or a suit in equity.
“(3) ‘Provisional remedy
means a proceeding ancillary to an action, including, but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged matter, or suppression of evidence.
“(B) an order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
“(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;
“(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;
“(3) An order that vacates or sets aside a judgment or grants a new trial;
“(4) An order that grants or denies a provisional remedy and to which both of the following apply:
“(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
“(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.
“(5) An order that determines that an action may or may not be maintained as a class action.
“(C) When a court issues an order that vacates or sets aside a judgment or grants a new trial, the court, upon the request of either party, shall state in the order the grounds upon which the new trial is granted or the judgment vacated or set aside.
“(D) This section applies to and governs any action, including an appeal, that is pending in any court on the effective date of this amendment and all claims filed or actions commenced on or after the effective date of this amendment, notwithstanding any provision of any prior statute or rule of law of this state.”
Under the amended statute there are now five types of orders that may be reviewed. The orders outlined in R.C. 2505.02(B)(1) through (3) were included within the language of the prior version of the statute whereunder, as we have already noted, the overruling of a motion to suppress was not considered a final order. Therefore, our inquiry must focus on whether the new category of order defined in R.C. 2505.02(B)(4) provides appellant with the means to an immediate appeal.
The definition of a provisional remedy is provided in R.C. 2505.02(A)(3) and clearly includes a proceeding for the suppression of evidence. However, in order to constitute a final order, the provisional remedy must satisfy the criteria set forth in R.C. 2505.02(B)(4)(a) and (b).
The first of these, (4)(a), requires the trial court’s order to effectively determine the action relative to the provisional remedy, and to prevent a final judgment in favor of appellant.
Free access — add to your briefcase to read the full text and ask questions with AI
Per Curiam.
Defendant-appellant, Thomas Ricciardi, appeals the decision of the Mahoning County Court of Common Pleas overruling his motion to suppress evidence. At issue in this case is whether the trial court’s ruling is a final order subject to immediate review under newly amended R.C. 2505.02.
On May 22, 1998, appellant was indicted on one count of driving under the influence of alcohol, in violation of R.C. 4511.19(A)(1), and one count of operating a motor vehicle with a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his breath, in violation of R.C. 4511.19(A)(3). Both counts were elevated to fourth degree felonies because of appellant’s three prior convictions of R.C. 4511.19(A) or (B) within the preceding six years of the instant offense.
On August IT, 1998, appellant filed a motion to suppress or in the alternative a motion
in Limine,
seeking to suppress the breathalyzer test results on the grounds that the test had not been conducted pursuant to agency regulations, that the test used had not been specific for ethyl alcohol, and that radio frequency interference had caused an overestimation of alcohol content. Following a hearing on September 21, 1998, the trial court overruled appellant’s motion. Thereafter, the trial court set the matter for trial, overruling appellant’s motion for a continuance and expressing its opinion that appellant had no legal right to appeal the trial court’s decision on the motion to suppress until after a final judgment on the merits had been rendered.
On October 2, 1998, appellant filed a notice of appeal and a motion to stay the trial court’s proceedings. By journal entry dated October 5, 1998, this court stated that appellant’s notice of appeal operated to divest the trial court of jurisdiction to conduct further proceedings, and granted appellant and plaintiffappellee, the state of Ohio, thirty days to submit jurisdictional memoranda on the issue of whether the trial court’s order was immediately reviewable.
Appellant argues that the trial court’s order denied appellant a provisional remedy and that appellant would not be afforded a meaningful remedy following final judgment since upon conviction he would be required to serve a mandatory prison term of no less than sixty days. According to appellant, said prison term would unconstitutionally deprive him of his freedom.
We begin our discussion by noting that historically the overruling of a motion to suppress evidence in a criminal case was not a final order subject to immediate review. See, for example,
State v. Crawley
(1994), 96 Ohio App.3d 149, 155, 644 N.E.2d 724, 728;
State v. Wetzel
(1963), 118 Ohio App. 368, 194 N.E.2d 911;
State v. Hinson
(Sept. 8, 1994), Cuyahoga App. No. 66259, unreported, 1994 WL 496658;
Cleveland v. Iacampo
(Dec. 27, 1990), Cuyahoga App. No. 57796, unreported, 1990 WL 212117;
State v. Lee
(Dec. 21, 1990), Lake App. No. 89-L-14-164, unreported, 1990 WL 212635. Appellant concedes in his notice of appeal and supporting memoranda that if a different result is to obtain herein it must be on account of the new language in R.C. 2505.02 allowing for the review of orders denying provisional remedies, subject to certain criteria.
R.C. 2505.02 as amended, effective July 22,1998, states as follows:
“(A) As used in this section:
“(1) ‘Substantial right’ means a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect.
“(2) ‘Special proceeding’ means an action or proceeding that is specially created by statute and that prior to 1853 was not denoted as an action at law or a suit in equity.
“(3) ‘Provisional remedy
means a proceeding ancillary to an action, including, but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged matter, or suppression of evidence.
“(B) an order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
“(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;
“(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;
“(3) An order that vacates or sets aside a judgment or grants a new trial;
“(4) An order that grants or denies a provisional remedy and to which both of the following apply:
“(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
“(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.
“(5) An order that determines that an action may or may not be maintained as a class action.
“(C) When a court issues an order that vacates or sets aside a judgment or grants a new trial, the court, upon the request of either party, shall state in the order the grounds upon which the new trial is granted or the judgment vacated or set aside.
“(D) This section applies to and governs any action, including an appeal, that is pending in any court on the effective date of this amendment and all claims filed or actions commenced on or after the effective date of this amendment, notwithstanding any provision of any prior statute or rule of law of this state.”
Under the amended statute there are now five types of orders that may be reviewed. The orders outlined in R.C. 2505.02(B)(1) through (3) were included within the language of the prior version of the statute whereunder, as we have already noted, the overruling of a motion to suppress was not considered a final order. Therefore, our inquiry must focus on whether the new category of order defined in R.C. 2505.02(B)(4) provides appellant with the means to an immediate appeal.
The definition of a provisional remedy is provided in R.C. 2505.02(A)(3) and clearly includes a proceeding for the suppression of evidence. However, in order to constitute a final order, the provisional remedy must satisfy the criteria set forth in R.C. 2505.02(B)(4)(a) and (b).
The first of these, (4)(a), requires the trial court’s order to effectively determine the action relative to the provisional remedy, and to prevent a final judgment in favor of appellant. Although arguably the evidence sought to be suppressed may ultimately be precluded at trial on other grounds, we believe the trial court’s decision nonetheless meets the criteria stated in R.C. 2505.02(B)(4)(a).
However, for an order to be immediately reviewable, R.C. 2505.02(4)(b) requires that an appealing party be deprived of a meaningful or effective remedy by an appeal following final judgment. Appellant argues that he will be denied a
meaningful or effective remedy on appeal since he would be “imprisoned for a crime he did not commit.”
Of course, appellant’s argument assumes that appellant would not prevail at trial, and that appellant would be equally unsuccessful in seeking a stay of execution pending appeal. While this court is disinclined to take so pessimistic a view of our criminal justice system, even assuming the aforementioned eventualities were to occur, the fact that appellant would have served time in prison prior to successfully procuring a reversal of his conviction does not amount to the denial of a meaningful or effective remedy.
In the first instance, incarceration is not the only consequence of a felony conviction. The consequences are much further reaching. R.C. 2961.01 provides:
“A person convicted of a felony under the laws of this or any other state or the United States,
unless the conviction is reversed or annulled,
is incompetent to be an elector or juror or to hold an office of honor, trust, or profit.” (Emphasis added.)
In addition, a felony conviction carries a stigma that may hinder an individual in various aspects of life, including efforts to obtain gainful employment. WTiile appellant’s remedy on appeal,
viz.,
reversal of the conviction, may not be perfect, in lieu of the above it cannot be said that the remedy lacks meaning or is ineffective.
In addition, appellant offers no authority, nor are we independently aware of any, that would support appellant’s claim that a criminal defendant may not be incarcerated prior to the exhaustion of all appellate relief. Although time spent incarcerated pending an appeal may indeed reduce the effectiveness of appellant’s remedy, it does not strip the remedy of all meaning, nor does it render it totally ineffective. Therefore, we are unpersuaded by appellant’s argument that the incarceration of a criminal defendant following conviction, but prior to appellate review, is a due process violation of constitutional magnitude.
In reaching our decision we are mindful that the Eleventh District Court of Appeals has recently decided this issue and concluded that the denial of a motion to suppress is not a final appealable order in a criminal case that is not terminated by way of trial or a plea.
State v. Jones
(Jan. 29, 1999), Portage App. No. 98-P-0116, unreported, 1999 WL 33100648. In reaching its decision, the court stated as follows:
“Appellant is not denied ‘effective or meaningful relief until the issues surrounding a motion to suppress evidence are reviewed with all other alleged errors following a trial.”
Jones, supra,
at 6.
In the instant case, appellant has failed to establish that he will not be afforded meaningful or effective relief by way of an appeal following possible conviction, as
required by R.C. 2505.02(B)(4)(b). Accordingly, the trial court’s decision is not a final order subject to immediate review by this court. Although the amended version of R.C. 2505.02 clearly anticipates that some rulings on motions to suppress evidence will be immediately reviewable, the instant case does not present such a situation.
Because the denial of appellant’s motion to suppress is not a final order, this appeal must be, and hereby is, dismissed, and the matter is remanded to the trial court for further proceedings.
Judgment accordingly.
Gene Donofrio and Vukovich, JJ. concur.
Cox, P.J., dissents.