Opinion
No. 79-1347
Decided March 26, 1980.
Prohibition — To prevent trial court from proceeding in action — Complaint dismissed, when — Adequate appeal remedy available.
APPEAL from the Court of Appeals for Cuyahoga County.
Relator, Kelly J. Parker, a.k.a. Kelly J. Stroth, was charged with the felonious assault of her son, Adam Stroth. (R.C. 2903.11.) Prior to preliminary hearing in the Euclid Municipal Court, the prosecutor for the city of Euclid offered to dismiss the charge and not refer it to the Cuyahoga County Grand Jury nor file any further charges under the facts if relator could pass a polygraph examination administered by the Euclid police department and further agree to make a statement about one Thomas Strong. Relator states that she accepted the offer, after which the charge of felonious assault was dismissed on December 8, 1978, by the court on motion of the city prosecutor.
On February 22, 1979, relator and Strong were indicted by the Cuyahoga County Grand Jury for the felonious assault of relator's son. Relator filed a motion in the Court of Common Pleas to dismiss the indictment for the reason that the state is bound by its agreement with her and that any further prosecution of the case would violate her right to due process of law under the Fourteenth Amendment to the Constitution of the United States. This motion was denied on June 22, 1979.
Relator then filed the instant action in prohibition in the Court of Appeals seeking to prohibit the Court of Common Pleas and the Prosecuting Attorney of Cuyahoga County from proceeding to trial on the indictment. The Court of Appeals dismissed the complaint on respondents' motion.
An appeal as of right brings the cause to this court for review.
Messrs. Blakely, Dean, Wilson Klingenberg and Lynn Schleusener, for appellant. Mr. John T. Corrigan, prosecuting attorney, and Mr. Patrick F. Roche, for appellees.
Prohibition will not issue against respondent prosecuting attorney since he is not seeking to exercise judicial or quasi-judicial power. See State, ex rel. Lehmann, v. Cmich (1970), 23 Ohio St.2d 11, for the conditions which must exist to support the issuance of a writ of prohibition.
Disposition relative to respondent Court of Common Pleas is governed by our recent decisions in State, ex rel. Adler, v. Court (1980), 61 Ohio St.2d 1, and State, ex rel. Wall, v. Grossman (1980), 61 Ohio St.2d 4. Here, as in those cases, respondent court has jurisdiction to hear the pending case sought to be prohibited. As we stated in Adler, at page 3, "[t]he 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." Relator has an adequate remedy at law by way of appeal.
For reason of the foregoing, the judgment of the Court of Appeals dismissing the complaint in prohibition is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.