Summary
In State ex rel. Dowdy v. Baird (1983), 3 Ohio St.3d 10, 444 N.E.2d 1032, the Supreme Court affirmed the denial of an action in prohibition filed in the court of appeals.
Summary of this case from State ex Rel. Sullivan v. CarrollOpinion
No. 82-1112
Decided February 9, 1983.
Prohibition — Probation violation hearing — Probationer indicted for crime which is dismissed after adjudication of probation violation — Double jeopardy alleged — Writ denied.
APPEAL from the Court of Appeals for Summit County.
This is an appeal as of right from the denial of a writ of prohibition by the court of appeals.
The prohibition action filed below sought to prevent a probation violation hearing which was scheduled for July 19, 1982. On July 3, 1982, petitioner-appellant, Vernon Dowdy, Jr., was indicted for gross sexual imposition stemming from a complaint filed by appellant's wife and involving appellant's twelve-year-old stepdaughter. This complaint was followed by appellant's arraignment on the charge of probation violation.
The entry of Judge William R. Baird of the Court of Common Pleas of Summit County, respondent-appellee, as to the probation violation charge was journalized the day of the hearing and recited that appellant had violated the terms and conditions of his probation. Sentence was thereupon reinstated. Subsequently, on July 30, upon the state's motion, the charge of gross sexual imposition was dismissed.
Chuparkoff Associates and Mr. Ted Chuparkoff, for appellant.
Mr. Lynn C. Slaby, prosecuting attorney, and Mr. Philip D. Bogdanoff, for appellee.
While appellant does not question the subject matter jurisdiction of the court of common pleas relative to the determination of a probation violation, he does urge that the hearing and determination, based upon the commission of a crime of which he had not been found guilty, was a usurpation of the court's jurisdiction which deprived him of due process.
First, appellant has made no showing that the probation violation charge and hearing thereon related exclusively to the charge of gross sexual imposition involved in the then pending criminal case. Moreover, appellant's reliance on the doctrine of collateral estoppel and double jeopardy, as invoked in People v. Grayson (1974), 58 Ill.2d 260, 319 N.E.2d 43, is misplaced. While the court in Grayson did reverse on appeal a probation revocation which took place after a criminal trial had resulted in a not guilty finding to a charge of armed robbery, that revocation hearing did indeed relitigate the same factual issues resolved in such prior criminal proceeding. Here, appellant was not required to run the gauntlet twice as the criminal charge was dismissed after probation was revoked. The instant prohibition action, directed to such probation violation determination, was at the least, misdirected.
Appellant has further made no showing of the inadequacy of the remedy of appeal from the revocation of his probation and his attempt to equate criminal due process rights, including right to trial by jury, with rights attendant a probation violation hearing, would properly be the subject of appellate review.
For reason of the foregoing, the judgment of the court of appeals denying the writ is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.
J.P. CELEBREZZE, J., not participating.