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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

DISMISSAL (111)

Also see Speedy Trial.

 

Criminal Rule 48 -- Dismissal.

Criminal Rule 7(B) -- Error in designation of statute in indictment grounds for dismissal only when defendant has

been prejudicially misled.

R.C. 2937.04 and 2937.05 -- Dismissal at arraignment.

R.C. 2945.73(A) -- Discharge for delay in holding preliminary hearing.

State v. Harris, 186 Ohio App. 3d 359, 2010-Ohio-837 – Defendant was indicted for CCW and improper handling of a firearm in a motor vehicle. Following a competency exam the trial court dismissed case in the interest of justice, finding the defendant was a confused 86-year old man with no significant criminal record. Because a bond slip indicated he was arrested a short time later with a replacement weapon in his car this is found to be an abuse of discretion..

State v. Montiel, 185 Ohio App. 3d 362, 2009-Ohio-6589 – Defendant pled guilty to domestic violence and was sentenced to time served. Fearing deportation, four years later he filed a motion to withdraw his guilty plea because he had not been advised of possible immigration law consequences. The court granted the motion. When the state proposed going forward on the case, the court sua sponte dismissed the case pursuant to Crim. R. 48(B). The state has failed to demonstrate an abuse of discretion. The Rule may be used to dismiss a case in the interest of justice. The punishment was sufficient and the other consequences of dismissal are collateral. Also see State v. Busch (1996), 76 Ohio St. 3d 613, concerning the inherent power of courts to “regulate the practice before it and protect the integrity of its proceedings.”

State v. Landers, 188 Ohio App. 3d 786, 2010-Ohio-3709 – Trial courts possess the inherent power to dismiss the cases on their dockets. Wife who filed domestic violence charge failed to appear for trial. Prosecutor indicated she was in prison. Defense moved to dismiss. Court did so, without prejudice. Court declines following State v. Spitzer (1995), 107 Ohio App. 3d 707.

State v. Craig, 116 Ohio St. 3d 135, 2007-Ohio-5752 -- A prosecutor‘s right to appeal the dismissal of an indictment does not hinge on whether that dismissal is designated as being with prejudice. R.C. 2945.67 is controlling, not 2505.02. 2945.67 contains no language limiting appeals to dismissals with prejudice. Prosecutor didn‘t show on date of trial, the plan being to obtain a writ of prohibition against the judge hearing the case. Case was dismissed, as was the state‘s appeal.

State v. Lindsey, 183 Ohio App. 3d 727, 2009-Ohio-4124 – Crack possession case drifted for nine months before another request for continuance by the state. Instead the court granted the defendant’s motion to dismiss. The state did not object at the time, but reversed as plain error. Time had not run under the speedy trial statutes and the state was entitled to have the case go forward according to proper procedure.

State ex rel. Flynt v. Dinkelacker, 156 Ohio App. 3d 595, 2004-Ohio-1695 -- An indictment cannot be conditionally dismissed. Plea agreement in 1999 substituted Hustler News and Gifts for the defendant named in the indictment. The company pleaded guilty and remaining charges against individuals were dismissed. In-court agreement that prosecution could be revived if there were future sales of obscene materials was unenforceable. Writ of prohibition granted.

State v. Mucci, 150 Ohio App. 3d 493, 2002-Ohio-6896 -- A post-indictment nonprosecution agreement requires court approval upon a showing of good cause. The recommendation of the prosecutor alone is not good cause per se. No abuse of discretion found in trial court's refusal to dismiss a sixteen count indictment with prejudice in exchange for the defendant's cooperation.

Columbus v. Storey, Franklin App. No. 03AP-743 -- Dismissal for failure to prosecute was not improper. Identification was the key issue, but officers were on a call in list instead of being placed under subpoena. Prosecutor had not requested a continuance before dismissal was ordered. State v. Shaw, Franklin App. No. 02AP-1036, 2003-Ohio-2139 distinguished. There the court went beyond the face of the complaint on a factual legal issue, while here the basis was procedural grounds.

State v. Tipton (1999), 135 Ohio App. 3d 227 -- Pretrial motions to dismiss are limited to matters apparent on the face of the indictment. The criminal rules do not provide for summary judgment, so matters resting on the court's examination of evidence must await a Criminal Rule 29 motion at the close of the state's case in chief. (This is an overstatement, as, for example, speedy trial motions rest on matters beyond the face of the indictment or complaint, yet must be raised before trial commences.)

State v. Wooldridge, Summit App. No. 21255, 2003-Ohio-1481 -- Rather than obey an order to disclose the identity of a confidential informant, the state moved to dismiss the indictment without prejudice. The state may not appeal the order granting dismissal, which nullified the claims brought against the accused, and returned the parties to the same position as if the state had never initiated the prosecution.

State v. Busch (1996), 76 Ohio St. 3d 613 -- Syllabus: "A trial court has the discretion to sua sponte dismiss a criminal case over the objection of the prosecution where the complaining witness does not wish the case to proceed." Girlfriend did not wish to proceed on domestic violence complaints.

State v. Lewis (1998), 125 Ohio App. 3d 352 -- Following State v. Busch (1996), 76 Ohio St. 3d 613 the trial court dismissed a felony domestic violence charge because the victim did not wish to testify. Court distinguishes Busch based on victim's statement she would testify truthfully, the existence of independent witnesses, and because the defendant was not a first offender. Remanded to trial court for consideration on the merits.

State v. Messinger (1976), 49 Ohio App. 2d 341 -- Court must state reasons for overruling a motion to dismiss an indictment so that a reviewing court may determine the propriety of the court's ruling. Also see Bryan v. Knapp (1986), 21 Ohio St. 3d 64.

State v. Fraternal Order of Eagles Aerie 0337 Buckeye (1991), 58 Ohio St. 3d 166 -- Syllabus: "Where a motion to suppress is made and granted after the commencement of trial, a trial court shall not proceed to enter a judgment of acquittal so as to defeat the state's right of appeal pursuant to Crim. R. 12(J)." Also see State v. Newell (1990), 68 Ohio App. 3d 623 -- After sustaining motion to suppress, court had to allow state seven days to perfect an appeal before discharging the defendant.

State v. Johnson (1990), 68 Ohio App. 3d 272, 277 -- When a nolle prosequi is entered before the jury is sworn, the defendant has not been placed in jeopardy. Dismissal of a duplicitous indictment following a mistrial does not bar further prosecution.

State v. Dixon (1984), 14 Ohio App. 3d 396 -- A court's allowance of a nolle prosequi based on insufficient evidence, following sanctions against the prosecutor for failure to provide discovery and a proper bill of particulars, can not be entered with prejudice unless there has been a deprivation of the defendant's constitutional or statutory rights, the violation of which, in and of itself, bars further prosecution.

State v. Sutton (1979), 64 Ohio App. 2d 105 -- Headnote 1: "Crim. R. 48(B) does not provide for the dismissal of an indictment with prejudice, and a court has inherent power to dismiss with prejudice only where it is apparent that the defendant has been denied either a constitutional or statutory right, the violation of which would, in itself, bar prosecution. If there has been no such denial, and if an application for a nolle prosequi meets the good cause and open court requirements of Crim. R. 48(A), it should be granted." Also see State v. Stephens (1977), 53 Ohio App. 2d 361.

State v. Malone (1984), 14 Ohio Misc. 2d 18 -- Nolle as a part of a plea bargain is a dismissal with prejudice. Former prosecutor agreed to dismissal in exchange for payment of court costs of $100 instead of the usual $30. Election winner, who had faulted such practices, refiled charges.

Maple Heights v. Redi Car Wash (1988), 51 Ohio App. 3d 60 -- Dismissal without prejudice is an abuse of discretion where the disqualification of the prosecutor and permitting the defendant to withdraw guilty plea was sufficient remedy for prosecutorial misconduct.

Cleveland v. Mosquito (1983), 10 Ohio App. 3d 239 -- A nolle prosequi can be entered only if the prosecutor consents.

Lakewood v. Pfeifer (1992), 83 Ohio App. 3d 47 -- (1) Refusal to grant a nolle at the request of the prosecutor is a final appealable order. (2) A court may overrule a prosecution request for a nolle if there is no more than a summary claim that there is insufficient evidence to proceed, however, the court must grant the nolle if the nature of the insufficiency is stated.

State ex rel. Lewis v. Lawrence County (1994), 95 Ohio App. 3d 565 -- For a record to be sealed pursuant to R.C. 2953.52, the defendant must either be found not guilty or the indictment or complaint must be dismissed. A nolle is not a dismissal. Court also indicates a guilty verdict on one count may prevent sealing the record as to the remaining counts.

State v. Richter (1993), 92 Ohio App. 3d 395 -- A court does not have authority to accept a guilty plea, then dismiss the charge.

State v. Tyren (1998), 91 Ohio Misc. 2d 67 -- Negotiations to resolve an abuse and dependency matter required defendant to undergo sex offender treatment. Admissions made during therapy led to an indictment, which the court dismisses to serve the interests of justice.

Brown v. Best Products Co. (1985), 18 Ohio St. 3d 32 -- Syllabus: "A release, executed between parties, the consideration of which, in whole or in part, is the suppression of criminal prosecution, is void because of a lack of consideration. (Insurance C. v. Hull [1984], 51 Ohio St. 270, applied.)"

City of Cincinnati v. Contemporary Arts Center (1990), 57 Ohio Misc. 2d 9 -- Ohio law does not provide for a motion to dismiss on the basis that there was not probable cause supporting the indictment. Also see State v. Hartley (1988), 51 Ohio App. 3d 47.

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