Opinion
No. 75-1092
Decided July 14, 1976.
Criminal law — Appeal — By state — Motion for leave to appeal — Procedural requirements — App. R. 4 and 5, applicable, when — Dismissal of appeal prejudicial error, when.
1. The rule announced in State v. Wallace, 43 Ohio St.2d 1, that a motion for leave to appeal in a criminal case shall be governed by the procedural requirements of App. R. 5 and the time requirements of App. R. 4(B), is prospective only in application and applies only to appeals by the state from judgments or final orders entered after the date of such decision on July 2, 1975.
2. In an appeal by the state from a judgment entered by the trial court on April 25, 1975, perfected in accordance with R.C. 2945.67 through 2945.70, with permission to file a bill of exceptions being granted by the Court of Appeals on May 27, 1975, the jurisdiction of the Court of Appeals is properly invoked, and a subsequent dismissal of the appeal for the failure to file a notice of appeal concurrently with the petition for permission to file the bill of exceptions constitutes prejudicial error.
APPEAL from the Court of Appeals for Lake County.
Marvin Bruno, appellee herein, was charged in a two-count indictment returned by the Lake County grand jury with the offenses of endangering children proscribed by R.C. 2919.22(A). On March 21, 1975, appellee moved to dismiss the indictment upon the ground the statute was unconstitutional by reason of facial vagueness. On April 25, 1975, the trial court sustained the motion. On May 8, 1975, appellant filed with the Court of Appeals a document characterized by that court as a "Petition for Permission to File Bill of Exception." The bill of exceptions, which had been previously filed with the trial court, was attached to the petition as an exhibit. On May 27, 1975, the Court of Appeals, by entry, granted permission to file the bill of exceptions. The bill of exceptions was thereafter filed, followed by briefs. On August 28, 1975, appellee moved to dismiss the appeal. The Court of Appeals, without passing upon the merits of the appeal and treating the petition as a motion for leave to appeal, dismissed the appeal for the reason that appellant had not filed a notice of appeal concurrently with its motion for leave to appeal, citing as authority State v. Wallace (1975), 43 Ohio St.2d 1. This cause is before this court upon the allowance of a motion for leave to appeal.
Mr. Paul H. Mitrovich, prosecuting attorney, and Mr. David J. Sternberg, for appellant.
Messrs. Donaldson, Colgrove, Cardinal Freed and Mr. Richard O. Colgrove, for appellee.
The pivotal issue this appeal presents is whether the requirement in State v. Wallace, supra, that appeals by the state shall be governed by the procedural requirements of App. R. 5 and the time requirement of App. R. 4(B), is retroactive or prospective only in application.
At the time of commencement of the appeal to the Court of Appeals on May 8, 1975, this court had announced its decision in State v. Hughes, 41 Ohio St.2d 208, on March 19, 1975. The syllabus provides:
"Insofar as App. R. 4(B), permitting the prosecution, as of right, to appeal judgments of trial courts, enlarges the statutory right of appeal provided by R.C. 2945.67 through 2945.70 and abridges the right of appellate courts to exercise their discretion in allowing appeals provided by these same sections, such rule is invalid under the provisions of Section 5 of Article IV of the Ohio Constitution, and an appeal filed by the state pursuant to App. R. 4(B) is properly dismissed where the provisions of R.C. 2945.68 have not been complied with." (Emphasis added.)
Understandably, therefore, the prosecution commenced its appeal pursuant to R.C. 2945.68, resulting in an order of the Court of Appeals on May 27, 1975, allowing the filing of the bill of exceptions. In perfecting the appeal pursuant to R.C. 2945.67 through 2945.70, appellant did not file a formal notice of appeal in either the trial court or Court of Appeals. An analysis of R.C. 2945.67 through 2945.70 reflects no requirement of the filing of a notice of appeal, hence, none was statutorily required. State v. Meltzer (1965), 4 Ohio App.2d 373. Thus, if the holding in Wallace applies only prospectively, the Court of Appeals erred in dismissing the appeal for failure to file a notice of appeal, as none was required.
R.C. 2945.68 reads as follows:
"The prosecuting attorney, solicitor, or the Attorney General may present a bill of exceptions in a criminal action to the Court of Appeals or the Supreme Court and apply for permission to file it with the clerk of the court for the decision of such court upon the points presented therein. Prior thereto, he shall give reasonable notice to the judge who presided at the trial in which such bill was taken, of his purpose to make such application. If the Court of Appeals or the Supreme Court allows the bill to be filed, the prosecuting attorney, solicitor, or Attorney General shall, within ten days of the filing of the bill, file his brief in support of such exceptions and forthwith serve a copy thereof upon the trial judge and any attorney appointed by the judge to argue the exceptions against the prosecuting attorney, solicitor or the Attorney General."
No issue having been raised, it is assumed this appeal from the sustaining of a motion to dismiss an indictment on the ground of the facial unconstitutionality of a statute is properly within the statutory enumeration in R.C. 2945.70 authorizing appeals by the state. See 28 Ohio Jurisprudence 2d 497, Section 80, Indictment and Information; 42 Corpus Juris Secundum 1200, Section 211(a), Indictments and Informations; Cincinnati v. McIntosh (1969), 20 Ohio App.2d 50; Columbus v. Starghill (1973), 35 Ohio Misc. 63; Cf. State v. Meeker (1971), 26 Ohio St.2d 9.
On July 2, 1975, this court decided Wallace, supra ( 43 Ohio St.2d 1) . While there does not appear either in the syllabus or in the opinion an express declaration that the holding therein announced was to be applied only prospectively, it is manifest that such was the intention of this court. The express recognition in the opinion that App. R. 5 was promulgated to provide a procedure for a delayed appeal by a defendant attests to such conclusion. Thus, it was stated, at page 3 in the opinion, "[i]n light of Hughes, we now hold that App. R. 5(A) is applicable to appeals by the state in criminal cases." (Emphasis added.)
In a similar view with respect to the applicability of App. R. 4(B), the court stated at pages 3-4: "We also hold that the time within which a motion for leave to appeal must be filed is to be governed by App. R. 4(B)," and "[b]ecause the time limits in App. R. 4(B) meet that objective, we make them applicable to such appeals." (Emphasis added.) Finally, it is to be noted that the syllabus reflects only a future application: "A motion for leave to appeal by the state in a criminal case shall be governed by the procedural requirements of App. R. 5 and the time requirement of App. R. 4(B)." (Emphasis added.)
In Hughes, supra, this court necessarily recognized the continuing vitality of R.C. 2945.67 through 2945.70, wherein, after concluding the invalidity of App. R. 4(B) in the aspects set forth in the syllabus, the court stated that the appeal must be dismissed for failure to comply with R.C. 2945.68. Until Wallace, the procedural statutory implementation of the limited right of appeal remained viable and in force, and compliance with such procedural statutes resulting in an order of the Court of Appeals allowing the filing of the bill of exceptions properly invoked the jurisdiction of such court. Wallace simply reflects the view of this court that, thereafter, the substantive right of appeal recognized in Hughes was better implemented by the application of existing procedural rules properly promulgated by this court pursuant to constitutional grant rather than by the existing statutory implementation in R.C. 2945.67 through 2945.70.
We, therefore, now make express what we view as clearly implicit in Wallace, that App. R. 4(B) and App. R. 5 govern appeals by the state from only those orders and judgments which become final after July 2, 1975. Since the judgment of dismissal by the Court of Appeals rests upon an application of such rules to an appeal from an order entered prior to July 2, 1975, and the appeal was otherwise properly perfected pursuant to R.C. 2945.67 through 2945.70, the judgment is reversed and the cause remanded to the Court of Appeals for further proceedings.
Judgment reversed.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.
CORRIGAN, J., dissents.
STEPHENSON, J., of the Fourth Appellate District, sitting for STERN, J.