Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
Also see Speedy
Criminal Rule 48 -- Dismissal.
Criminal Rule 7(B) -- Error in designation of
statute in indictment grounds for dismissal only when defendant has
R.C. 2937.04 and
2937.05 -- Dismissal at
R.C. 2945.73(A) -- Discharge for delay in
holding preliminary hearing.
State v. Harris, 186 Ohio App. 3d
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
2945.67 is controlling, not
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
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
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
State v. Shaw, Franklin App. No. 02AP-1036,
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.
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
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,
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
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
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
State v. Richter (1993), 92 Ohio App. 3d
395 -- A court does not have authority to accept a guilty plea, then dismiss the
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 , 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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