Opinion
No. 76-3
Decided June 16, 1976.
Criminal law — Double jeopardy defense not applicable, when — Prohibition not available, when.
APPEAL from the Court of Appeals for Hamilton County.
The appellees are the judges of the Hamilton County Municipal Court. The appellant attended a rock concert on November 24, 1973, after which she was involved in a disagreement with the Cincinnati Police. As a result of this misunderstanding she was charged with two counts of assault and battery on a police officer, one count of resisting arrest, one count of receiving stolen goods and one count of assault with a deadly weapon. She was indicted at the January, 1974, term of the Court of Common Pleas of Hamilton County, for assaulting Patrolman Norm Hughes "with a dangerous weapon or instrument." On September 26, 1974 before a visiting judge of the Court of Common Pleas, she withdrew her not guilty plea, and entered a plea of guilty to the lesser-included offense of assault and battery, and the court imposed sentence accordingly.
The four other charges were filed in the Hamilton County Municipal Court on November 24, 1973. On five separate occasions the cases were continued at the appellant's request, and on three occasions were continued by the court. On November 1, 1974, appellant's motion to dismiss the charges based on collateral estoppel and double jeopardy was overruled. Appellant then immediately filed a complaint for a writ of prohibition or alternative writ against the appellees herein, in the Court of Appeals for Hamilton County, stating that these cases arose out of the same set of facts that had been disposed of in the aforesaid plea of guilty entered in the Court of Common Pleas of Hamilton County, and should be "dismissed on the grounds of once in jeopardy."
The appellees, although duly served, failed to answer until February 5, 1975, and, on February 10, 1975, a motion for default judgment was filed by appellant. Further pleadings were filed, including a motion for summary judgment by appellant, on October 21, 1975. On November 17, 1975, the Court of Appeals overruled the motion for summary judgment without a hearing. A motion for reconsideration was duly filed, and denied on December 10, 1975.
On December 12, 1975, appellees filed a motion to dismiss "for failure to state a cause of action in prohibition." Appellant duly filed a memorandum in opposition, and the Court of Appeals dismissed the complaint on December 23, 1975.
The cause is now before this court upon an appeal as a matter of right.
Messrs. Boyd, Wyler McKew and Mr. William S. Wyler, for appellant.
Mr. Thomas A. Luebbers, city solicitor, Mr. Paul J. Gorman and Mr. K.C. Collett, for appellees.
While the appellant raises two issues for this court's consideration, we are of the opinion that this cause can be, and has previously been, decided on the second proposition of law. Succinctly stated, appellant maintains that the Court of Appeals erred in dismissing her complaint for a writ of prohibition. The appellees based their motion for dismissal on the contention that a writ of prohibition is not the proper method to test the power of a Municipal Court to entertain jurisdiction over misdemeanor charges arising out of the same incident in which a felony indictment was previously disposed of in the Court of Common Pleas. In State, ex rel. Susi, v. Flowers (1975), 43 Ohio St.2d 11, this court was presented with a similar situation. However, in that case, the misdemeanor charges in the Municipal Court were disposed of first. The appellants in susi, supra, then sought a writ of prohibition against the judge of the Court of Common Pleas requesting that he be prevented from exercising further jurisdiction in the felony indictment. The appellants contended, as does the appellant in this case, that the remaining charge was barred by the double jeopardy clause of the Ohio and federal Constitutions. They relied upon Ashe v. Swenson (1970), 397 U.S. 436, and Owens v. Campbell (1971), 27 Ohio St.2d 264, as does appellant herein.
This court, in Susi, in a per curiam opinion, stated, at page 13:
"Neither Ashe nor Owens supports the position taken by the appellants herein, for two reasons.
"First, the doctrine of collateral estoppel is not applicable to this case. Collateral estoppel provides that one who has been adjudged not guilty of a criminal charge may not be tried thereafter upon a separate charge arising out of the same event or occurrence. In the present case, the appellants were not acquitted in the initial trial, but convicted. [Emphasis added.]
"Second, neither the United States Supreme Court, nor this court, has determined the so-called same transaction test, enunciated by Justice Brennan in his concurring opinion in Ashe, to be an essential Fifth Amendment guarantee. See Justice Harlan's concurring opinion, at page 448 of Ashe, supra; State v. Ferguson (1964), 175 Ohio St. 390, 394. We adhere to the mandate of the United States Supreme Court in this regard."
In the instant matter the appellant entered a plea of guilty in the Court of Common Pleas of Hamilton County. It may be argued that she plead to a lesser-included offense, the same being a misdemeanor. We fail to see how that would distinguish this case from Susi, supra.
Finally, the assertion that the extraordinary writ of prohibition is the proper vehicle by which to test a ruling, on a motion to dismiss, of a Municipal Court in a matter of this nature is without any support. See State, ex rel. Gilla, v. Fellerhoff (1975), 44 Ohio St.2d 86, and the series of cases cited therein.
This court, having conclusively determined that the appellant is not entitled to the relief prayed for via a writ of prohibition, affirms the judgment of dismissal entered by the Court of Appeals.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.