Opinion
No. CA83-08-012
Decided December 30, 1983.
Appellate procedure — Court without jurisdiction to hear state's appeal, when.
O.Jur 3d Criminal Law § 1433.
Pursuant to R.C. 2945.67, a court of appeals is without jurisdiction to hear the state's appeal from a final verdict of not guilty with regard to a violation of R.C. 4511.21, because, had appellee been convicted of the offense, his conduct would have constituted a criminal offense pursuant to R.C. 2901.03.
APPEAL: Court of Appeals for Preble County.
Mr. John E. Hykes, special prosecutor, for appellant.
Mr. James Huxtable, pro se.
This cause came on to be heard upon the appeal from the Eaton Municipal Court of Preble County.
Appellee, James W. Huxtable, was stopped by an Ohio State Highway Patrolman on April 18, 1983, and issued a citation for traveling eighty-three miles per hour in a fifty-five mile per zone. Appellee was timed by a patrolman flying a patrol airplane. Appellee pled not guilty to a charge of exceeding the posted speed limit in violation of R.C. 4511.21, and a trial was held on September 30, 1983, in the Eaton Municipal Court. At trial, the court raised the issue of the competency of the pilot to testify, because the pilot was not in a properly marked motor vehicle as required by R.C. 4549.13. Appellee was subsequently found not guilty. The state of Ohio has timely filed the instant appeal from the decision of the Eaton Municipal Court.
R.C. 2945.67 governs appeals by the state, and provides that a prosecuting attorney, village solicitor, city director of law, or the Attorney General may appeal certain trial court decisions as a matter of right, and other decisions by leave of the court to which the appeal is taken. No appeal by the state is permitted with regard to the final verdict of a trial court in a criminal case or the final verdict of a juvenile court in a delinquency case.
Appellee was found not guilty of violating R.C. 4511.21, a minor misdemeanor pursuant to R.C. 4511.99(E). Had appellee been convicted of the offense, his conduct would have constituted a criminal offense pursuant to R.C. 2901.03. Therefore, appeal by the state of Ohio is precluded by R.C. 2945.67, and this court is without jurisdiction in the instant case. Accordingly, the appeal is hereby dismissed.
Appeal dismissed.
HENDRICKSON, P.J., KOEHLER and FUERST, JJ., concur.
FUERST, J., of the Court of Common Pleas of Cuyahoga County, sitting by assignment in the Twelfth Appellate District.