Opinion
No. 50249
Decided March 10, 1986.
Criminal law — Constitutional law — Indictments — Denial of motion to dismiss not appealable, when.
O.Jur 3d Criminal Law § 1427.
The denial of a motion to dismiss an indictment containing a penalty-enhancing specification alleging that the defendant was previously convicted of an offense of violence, on the basis that the specification violates the Double Jeopardy Clause, is not a final appealable order. (R.C. 2953.02, applied.)
APPEAL: Court of Appeals for Cuyahoga County.
John T. Corrigan, prosecuting attorney, and Patricia Cleary, for appellee.
Cassidy, Mottl Celebrezze and Kevin P. Weiler, for appellant Donotha Hawkins.
The defendant appeals from the denial of his motion to dismiss the indictment charging him with grand theft and a penalty-enhancing specification. He claims that the specification subjects him to double jeopardy because it alleges that he was previously convicted of an offense of violence.
The ruling which the defendant challenges here is not a final appealable order. R.C. 2953.02; cf. Middletown v. Jackson (1983), 8 Ohio App.3d 431, 8 OBR 556, 457 N.E.2d 898. This is not a case in which the defendant claims that he was previously in jeopardy and the state improperly threatens to try him again. See State v. Thomas (1980), 61 Ohio St.2d 254, 15 O.O. 3d 262, 400 N.E.2d 897, certiorari denied (1980), 449 U.S. 852. A defendant cannot transform every interlocutory ruling which considers double jeopardy issues into a final appealable order.
An otherwise interlocutory order can be appealed if it potentially subjects the defendant to a constitutionally prohibited retrial. In this case, the defendant suggests no reason why he should not stand trial on the grand theft charge. If he is convicted for that offense, his right of appeal adequately protects him against a constitutionally improper sentence.
Therefore, we dismiss this appeal for lack of jurisdiction.
If we had jurisdiction, we would reject defendant's claim that R.C. 2929.11(D) subjects him to a penalty which violates the constitutional prohibition against double jeopardy. State v. Butcher (Oct. 31, 1985), Cuyahoga App. No. 49704, unreported; cf. State v. Loines (1984), 20 Ohio App.3d 69, 20 OBR 88, 484 N.E.2d 727 (R.C. 2929.71 does not violate double jeopardy by penalty enhancement for using a firearm in aggravated robbery); State v. Hughley (1984), 20 Ohio App.3d 77, 20 OBR 97, 484 N.E.2d 758 (same).
Appeal dismissed.
PATTON and KRUPANSKY, JJ., concur.