Opinion
No. 79-679
Decided January 2, 1980.
Prohibition — To prohibit trial court from proceeding on criminal indictment — Writ denied, when.
APPEAL from the Court of Appeals for Wood County.
Relator, Larry F. Adler, was charged with kidnapping (R.C. 2905.01) and felonious assault (R.C. 2903.11). A preliminary hearing was held in the Perrysburg Municipal Court on the assault charge, and Adler was bound over to the grand jury. Before the court considered the kidnapping charge against Adler, however, the police prosecutor told Adler and his counsel that the charge of kidnapping would be dismissed if Adler would "execute a release." The release was signed, and the kidnapping charge was dismissed.
The Perrysburg Municipal Prosecutor represented the state at preliminary hearings on felony charges in Perrysburg Municipal Court.
Adler released "the city of Perrysburg, the Municipal Court of Perrysburg and the personnel thereof," and other persons, police officials and commissioners "from any and all claims, actions and causes of action which may arise from my arrest, detention, prosecution or any incident thereof."
Following a discussion between the police prosecutor and representatives of the Wood County Prosecuting Attorney's office, the prosecuting attorney presented evidence arising from facts in the dismissed kidnapping charge to the grand jury which returned an indictment charging Adler with abduction (R.C. 2905.02), a lesser included offense of kidnapping.
Adler pleaded not guilty in the Court of Common Pleas of Wood County and moved to dismiss the indictment on the ground that the police prosecutor had agreed not to prosecute him on the charge of kidnapping in exchange for his release of any claim against Perrysburg officials. Adler's motion for dismissal was denied.
Adler then instituted the instant action in prohibition in the Court of Appeals seeking to prohibit the Court of Common Pleas of Wood County from proceeding on the indictment for the crime of abduction.
The Court of Appeals allowed the writ.
An appeal as of right brings the cause to this court for review.
Mr. John J. Callahan, for appellee.
Mr. John S. Cheetwood, prosecuting attorney, for appellant.
The issue before this court is, simply, whether a writ of prohibition should issue in this cause to prevent respondent court from proceeding with the matter before it.
A writ of prohibition will not issue against a court unless it is about to exercise judicial power and "the exercise of such power must amount to an unauthorized usurpation of judicial power." State, ex rel. Zakany, v. Avellone (1979), 58 Ohio St.2d 25, 26.
In the cause before us, the Court of Common Pleas had original jurisdiction in the action relator seeks to prohibit. The action of respondent in denying relator's motion to dismiss the indictment, even assuming, arguendo, that it may be erroneous, does not constitute the unauthorized usurpation of judicial power. Prohibition will not lie to prevent enforcement of an allegedly erroneous judgment rendered by a court with jurisdiction. State, ex rel. Mansfield Telephone Co., v. Mayer (1966), 5 Ohio St.2d 222, 223; Marsh v. Goldthorpe (1930), 123 Ohio St. 103.
Relator's argument, that the actions of the police prosecutor in obtaining relator's release of claims and dismissing a charge against him justify the issuance of a writ of prohibition to prevent respondent court from assuming jurisdiction herein, is without merit.
Relator has an adequate remedy by way of appeal from any adverse judgment against him in the action presently before respondent court. See State, ex rel. Gilla, v. Fellerhoff (1975), 44 Ohio St.2d 86, 88.
Accordingly, the judgment of the Court of Appeals allowing the writ of prohibition is reversed.
Judgment reversed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.