Opinion
No. 81-518
Decided February 19, 1982.
Prohibition — To prevent Juvenile Court from proceeding with hearing — Writ denied, when — Appeal remedy available.
APPEAL from the Court of Appeals for Cuyahoga County.
Between February 25, 1979 and April 2, 1979, appellant, Michael Duganitz, was charged with delinquency in six different complaints. Each complaint arose out of separate, unrelated incidents. At the time these complaints were filed, appellant was 17 years of age.
Case No. 7902978 arose out of events occurring on January 16, 1979, and February 26, 1979, and alleged violations of R.C. 2909.06(A)(1) and 2903.21(A) (both misdemeanors); case No. 7903179 arose out of an event occurring on February 22, 1979, and alleged a violation of R.C. 2903.11(A)(2) (a felony); case No. 7901580 arose out of an event occurring on January 25, 1979, and alleged a violation of R.C. 2903.11(A)(2) (a felony); case No. 7903178 arose out of two events occurring on February 16, 1979, and alleged violations of R.C. 2903.11(A)(2) (a felony) and R.C. 2903.13(A) (a misdemeanor); case No. 7904765 arose out of an event occurring on March 16, 1979, and alleged a violation of R.C. 2911.01(A)(2) (a felony); and case No. 7903409 arose out of an event occurring on February 18, 1979, and alleged a violation of R.C. 2903.11(A)(2) (a felony).
Appellant's date of birth is April 25, 1961.
On May 18, 1979, appellant appeared before appellee Leodis Harris, a judge of the Juvenile Court of Cuyahoga County, for purposes of a hearing pursuant to Juv. R. 30. Following this hearing, Judge Harris relinquished jurisdiction over appellant to the general division of the Court of Common Pleas of Cuyahoga County upon four of the complaints. However, Judge Harris retained jurisdiction over appellant upon two of the complaints. Judge Harris then continued indefinitely the hearing upon the complaints over which he retained jurisdiction.
Case Nos. 7903179, 7901580, 7903178, and 7904765.
Case Nos. 7902978 and 7903409.
Juv. R. 2, in pertinent part, defines two types of hearings in juvenile matters — "adjudicatory" and "dispositional." An "`adjudicatory hearing' means a hearing to determine whether a child is * * * delinquent * * *." A "`[d]ispositional hearing' means a hearing to determine what action shall be taken concerning a child who is within the jurisdiction of the court." Standing alone, a finding of delinquency stemming from an adjudicatory hearing does not constitute a final, appealable order. See In re Bolden (1973), 37 Ohio App.2d 7, and In re Sekulich (1981), 65 Ohio St.2d 13. However, once such a finding is made, the court is under an affirmative duty to hold a dispositional hearing and make disposition. See R.C. 2151.35 and In re Whittington, infra.
Appellant was subsequently indicted upon charges stemming from the four complaints over which jurisdiction had been relinquished. Following his indictment, appellant entered into a pretrial agreement whereby he pled guilty to one count of aggravated robbery and two counts of aggravated assault. In exchange, the prosecuting attorney agreed to dismiss all other charges pending in the general division of the Court of Common Pleas and to not pursue the two complaints pending in Juvenile Court. Appellant was sentenced to terms of imprisonment.
On November 14, 1979, appellant made a motion to dismiss the charges still pending in Juvenile Court in case No. 7902978. Apparently believing that appellant would seek "shock probation" pursuant to R.C. 2947.061, Judge Harris indicated that he would defer ruling upon the motion to dismiss until after the trial court had ruled upon the question of whether appellant was to be granted "shock probation." By entry dated December 23, 1979, the trial court granted appellant's motion to suspend further execution of the sentence and placed appellant upon probation for a term of three years.
For reasons which are not apparent, appellant moved for dismissal of case No. 7902978, only.
In pertinent part, R.C. 2947.061 provides that "[s]ubject to sections 2951.02 to 2951.09 of the Revised Code, the trial court may, upon motion of the defendant made not earlier than thirty days nor later than sixty days after the defendant, having been sentenced, is delivered into the custody of the keeper of the institution in which he is to begin serving his sentence, or upon the court's own motion during the same thirty-day period, suspend the further execution of the sentence * * *."
On January 30, 1980, Judge Harris denied appellant's motion to dismiss and set a hearing date of March 18, 1980. However, on March 13, 1980, appellant filed a complaint for a writ of prohibition in the Court of Appeals for Cuyahoga County. Appellant sought to prohibit appellees, the Court of Common Pleas of Cuyahoga County, Juvenile Court Division, and Judge Harris from exceeding their jurisdiction by conducting further proceedings against appellant in case No. 7902978.
The Court of Appeals refused to issue the writ of prohibition and the cause is now before this court upon an appeal as of right.
Mr. Jonathan N. Garver and Mr. William L. Summers, for appellant.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Jeffrey Posner, for appellees.
Appellant seeks to have this court review and determine the legality of Judge Harris' actions herein. Prior to reaching the merits of the instant cause, however, we must resolve the threshold question of whether under the facts of this cause, prohibition is an appropriate remedy.
This court has consistently held that in order for prohibition to lie, three requirements must be satisfied: "* * * (1) The court of 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 in the ordinary course of the law." State, ex rel. McKee, v. Cooper (1974), 40 Ohio St.2d 65, paragraph one of the syllabus; State, ex rel. Susi, v. Flowers (1975), 43 Ohio St.2d 11; State, ex rel. Bell, v. Blair (1975), 43 Ohio St.2d 95. Accord State, ex rel. Rhodes, v. Solether (1955), 162 Ohio St. 559.
We have also held that "prohibition cannot be used as a substitute for appeal." State, ex rel. Crebs, v. Court of Common Pleas (1974), 38 Ohio St.2d 51, 52.
Under the facts of this case, appellant has an adequate remedy at law by way of appeal. See, e.g., In re Whittington (1969), 17 Ohio App.2d 164. Accordingly, we hold that the Court of Appeals did not err in refusing to issue the writ of prohibition. The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.
KRUPANSKY, J., not participating.