Summary
In DuBose, 64 Ohio St.2d at 171, the Ohio Supreme Court held that the overruling of a motion to dismiss on the ground of double jeopardy is a final appealable order and, as such, "an appeal to the Court of Appeals is an adequate, proper and available remedy," which precludes the granting of a writ of prohibition.
Summary of this case from Harris v. SweeneyOpinion
No. 80-1091
Decided December 23, 1980.
Prohibition — To prohibit trial court from proceeding — Writ denied, when — Conditions for issuance of writ not met.
APPEAL from the Court of Appeals for Trumbull County.
On March 22, 1979, a complaint was filed in the Juvenile Division of the Court of Common Pleas of Trumbull County charging relator herein, Mark Larnell DuBose, with being a "delinquent child," as defined in R.C. 2151.02, for the reason that he allegedly caused the death of Michael Leroy Emery purposely and with prior calculation and design, on March 21, 1979, in violation of R.C. 2903.01.
R.C. 2151.02 provides:
"As used in sections 2151.01 to 2151.54, inclusive, of the Revised Code, `delinquent child' includes any child:
"(A) Who violates any law of this state, the United States, or any ordinance or regulation of a political subdivision of the state, which would be a crime if committed by an adult, except as provided in section 2151.021 [ 2151.02.1] of the Revised Code;
"(B) Who violates any lawful order of the court made under this chapter."
R.C. 2903.01 provides:
"(A) No person shall purposely, and with prior calculation and design, cause the death of another.
"(B) No person shall purposely cause the death of another while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson or arson, aggravated robbery or robbery, aggravated burglary or burglary, or escape.
"(C) Whoever violates this section is guilty of aggravated murder, and shall be punished as provided in section 2929.02 of the Revised Code."
On May 11, 1979, in a decision that forms the focal point of the case at bar, the Juvenile Court found (1) "relator to be a delinquent child" and (2) "probable cause that relator committed a felony." Accordingly, relator was bound over, as an adult, to the General Division of the Court of Common Pleas of Trumbull County.
Relator was subsequently indicted by the Trumbull County Grand Jury for aggravated murder, the identical offense for which he had been found to be a "deliquent child" in the Juvenile Court. Relator's motion to dismiss the indictment, asserting his right not to be placed twice in jeopardy, was overruled by the trial court.
Relator then instituted the instant action in prohibition in the Court of Appeals seeking to prohibit the Court of Common Pleas from assuming jurisdiction of relator's case and from proceeding to trial on the indictment.
The Court of Appeals allowed the writ.
The cause is now before this court pursuant to an appeal as of right.
Mr. Howard W. Martin, for appellee.
Mr. J. Walter Dragelevich, prosecuting attorney, Mr. Dennis Watkins and Mr. Peter J. Kontos, for appellant.
The writ of prohibition is an extraordinary remedy which is customarily granted with caution and restraint. It is a fundamental principle of Ohio law that the conditions which must exist to support the issuance of a writ of prohibition are, as recently stated in State, ex rel. Wall, v. Grossman (1980), 61 Ohio St.2d 4:
"`(1) The court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be unauthorized by law; and (3) it must appear that the refusal of the writ would result in injury for which there is no other adequate remedy.' State, ex rel. Lehmann, v. Cmich (1970), 23 Ohio St.2d 11." See, also, Ohio Bell v. Ferguson (1980), 61 Ohio St.2d 74, 76.
Since the relator has failed to demonstrate the presence of the foregoing prerequisites in this case, we must reverse the Court of Appeals' granting of the writ. It is imperative to note, however, that, in light of our disposition, we do not address relator's substantive contention that a finding of "delinquency" under R.C. 2151.02(A) necessarily embraces the conclusion that an individual has violated a law of this state. Similarly, we express no opinion as to whether the Juvenile Court proceedings were, in actuality, the functional equivalent of a probable cause hearing.
The trial court's assumption of jurisdiction of relator's criminal trial is clearly not an impermissible usurpation of judicial power. Initially, we are compelled to point out that R.C. 2931.03 vests the Court of Common Pleas with original jurisdiction of the crime of aggravated murder. As we recently ruled in State, ex rel. Adler, v. Court (1980), 61 Ohio St.2d 1, 3:
R.C. 2931.03 provides:
"The court of common pleas has original jurisdiction of all crimes and offenses, except in cases or minor offenses the exclusive jurisdiction of which is vested in courts inferior to the court of common pleas."
"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 Company, v. Mayer (1966), 5 Ohio St.2d 222, 223; Marsh v. Goldthorpe (1930), 123 Ohio St. 103."
Secondly, the Court of Common Pleas, as a court of general jurisdiction, possesses the authority to determine its own jurisdiction over both the person and the subject matter in an action before it, subject to the right of appeal. This precise point was specifically addressed by this court in State, ex rel. Miller, v. Court of Common Pleas (1949), 151 Ohio St. 397, paragraph three of the syllabus:
"A court having general jurisdiction of the subject matter of an action has authority to determine its own jurisdiction on issue raised, and a party challenging its jurisdiction has a remedy at law in appeal from an adverse holding of the court that it has such jurisdiction, and may not maintain a proceeding in prohibition to prevent the prosecution of such action." See, also, State, ex rel. Gilla, v. Fellerhoff (1975), 44 Ohio St.2d 86.
Consequently, the trial court clearly has jurisdiction to hear relator's pending criminal case. Relator has demonstrated no defect of a jurisdictional nature and no unauthorized usurpation of judicial power by the Court of Common Pleas.
Relator has also failed to show that an appeal to the Eleventh District Court of Appeals is not an adequate remedy at law. The overruling of a motion to dismiss on the ground of double jeopardy is a final appealable order. State v. Thomas (1980), 61 Ohio St.2d 254, paragraph one of the syllabus. Thus, an appeal to the Court of Appeals is an adequate, proper and available remedy. We emphasize that prohibition is not a substitute for appeal. State, ex rel. Gilla, v. Fellerhoff, supra; State, ex rel. Toerner, v. Common Pleas Court (1971), 28 Ohio St.2d 213.
For all the foregoing reasons, the judgment of the Court of Appeals is reversed and the writ is denied.
Judgment reversed and writ denied.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY, LOCHER, HOLMES and DOWD, JJ., concur.