Opinion
No. 74-813
Decided July 16, 1975.
Criminal procedure — Appeal — Crim. R. 12(J), construed — Appeal by state — Motion to suppress evidence.
1. Crim. R. 12(J) is an exception to the general rule prohibiting appeals by the state in criminal prosecutions and shall be strictly construed.
2. The purpose of Crim. R. 12(J) is to allow the state a review of the adverse ruling of a trial court on a motion for the return of seized property, or on a motion to suppress evidence, where the granting of the motion has so debilitated the vitality of the state's case that any reasonably effective prosecution has been destroyed; the purpose is not the delay of an ultimate disposition.
3. All matters intended to be reviewed shall be diligently and expeditiously prosecuted in an appeal pursuant to Crim. R. 12(J).
APPEAL from the Court of Appeals for Franklin County.
Appellant, Leonard R. Caltrider, was charged, on December 5, 1972, in the Franklin County Municipal Court, with a violation of R.C. 2905.35. At the preliminary hearing held on April 24, 1973, the court found sufficient cause to bind appellant over to the grand jury, whereupon he was indicted, arraigned, and, on July 3, 1973, he filed a motion to suppress the evidence. The motion to suppress was heard by the Court of Common Pleas, and, on October 9, 1973, an entry was made, as follows:
"* * * It is further * * * ordered that defendant's motion to suppress is sustained and all evidence seized in that search of 183 South High Street, Columbus, Ohio, on or about December 5, 1972, is hereby suppressed." (Emphasis added.)
The state filed a timely notice of appeal to the Court of Appeals, pursuant to Crim. R. 12(J). On December 28, 1973, the Court of Appeals affirmed the judgment of the lower court and remanded the cause for further proceedings.
Appellant then learned that appellee proposed to use testimony which appellant averred had been suppressed. Appellant's motion for an order to enforce the trial court's prior order of suppression was sustained on February 13, 1974, as follows:
"Ordered that the Prosecuting Attorney be notified forthwith that any attempt to use testimony of Officer Rass Oakley in order to describe the films seized by him on December 5, 1972, at 183 South High Street, Columbus, Ohio, at a trial of the defendant would constitute a violation of the prior order of suppression made by this court on October 9, 1973."
Again, appellee filed timely notice and appealed to the Court of Appeals, pursuant to Crim. R. 12(J), alleging that the trial court had broadened its original decision. On July 3, 1974, in a journal entry, the Court of Appeals reversed the judgment of the trial court and remanded the cause to that court for further proceedings in accordance with law and consistent with its decision.
A motion for leave to appeal from the Court of Appeals was allowed by this court.
Mr. George C. Smith, prosecuting attorney, and Mr. Alan C. Travis, for appellee.
Messrs. Campbell, Schwarzwalder Sanford and Mr. Jay H. Sanford, for appellant.
This case presents, for the first time, a determination of the scope of Crim. R. 12(J).
In pertinent part, Crim. R. 12(J) reads:
"The state may take an appeal as of right from the granting of a motion for the return of seized property, or from the granting of a motion to suppress evidence if, in addition to filing a notice of appeal, the prosecuting attorney certifies that: (1) the appeal is not taken for the purpose of delay; and (2) the granting of the motion has rendered the state's proof with respect to the pending charge so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed.
"Such appeal shall not be allowed unless the notice of appeal and the certification by the prosecuting attorney are filed with the clerk of the trial court within seven days after the date of the entry of the judgment or order granting the motion. Any appeal taken under this rule shall be diligently prosecuted."
From the papers and documents filed in this case it is obvious that the original motion to suppress filed by appellant herein had reference to that part of Crim. R. 12(J) which reads "a motion to suppress evidence" as opposed to that part of the rule which states "a motion for the return of seized property." We would conclude from that choice of words employed by the appellant (movant) that the motion was directed to all the evidence in the state's file, which would include testimonial evidence. From a persual of the trial court's ruling suppressing "all" evidence it is difficult to conclude otherwise.
The rule provides further:
"Any appeal taken under this rule shall be diligently prosecuted."
Appellant points out that the state did not attempt to argue any other suppression of evidence except the film seized. However, the state's notice of appeal appears to be all-inclusive, inasmuch as the state announces its intention to have the decision "sustaining the motion to suppress" reviewed.
Appellee correctly sets forth the law of the time in its reference to State v. Collins (1970), 24 Ohio St.2d 107, wherein the syllabus reads:
"`The state may not prosecute an appeal in a criminal case from an order sustaining a pre-trial motion to suppress evidence."
However, as noted by appellee in his brief and judiciously predicted by Justice Herbert in his opinion, the General Assembly of Ohio has amended R.C. 2945.70, allowing the state limited appeal and ratified the Ohio Rules of Criminal Procedure established by this court, more particularly Crim. R. 12(J). Appellee argues that while the state may have been granted this limited appeal, nowhere is it provided that the defendant may seek a further review. We disagree, and call the attention of appellee to Section 2(B)( 2), Article IV of the Ohio Constitution, which provides, in pertinent part:
"The Supreme Court shall have appellate jurisdiction as follows:
"* * *
"(d) In cases of public or great general interest, the Supreme Court may direct any Court of Appeals to certify its record to the Supreme Court, and may review and affirm, modify, or reverse the judgment of the Court of Appeals * * *."
This court determines that while neither the doctrine of res judicata nor that of collateral estoppel (estoppel by judgment) is applicable in a case of this nature, the record herein calls for a similar equitable application. We are of the opinion that the second appeal initiated by the state was not in keeping with the spirit or intent proposed under Crim. R. 12(J), nor In re Becker (1974), 39 Ohio St.2d 84, cited in its brief, wherein, at page 87, the following language may be found:
"* * * It is time for an end to endless appeals that perpetuate procrastination, and a time for this court to give direction and a definite order of instruction determining the path of appellate procedure in these matters."
The same writer steadfastly adheres to that principle.
This court finds that the trial court had suppressed all the evidence in its order of October 9, 1973, which was subsequently affirmed by the Court of Appeals; and that the second motion "for an order to enforce the trial court's order of suppression" was ancillary to the ruling previously affirmed by the Court of Appeals, and, therefore, was not within the limited scope of review provided for in Crim. R. 12(J).
Judgment reversed.
O'NEILL, C.J., CORRIGAN, STERN and W. BROWN, JJ., concur.
HERBERT, J., concurs in paragraphs two and three of the syllabus and in the judgment.
P. BROWN, J., concurs in the judgment only.