Borsick v. State

[This opinion has been published in Ohio Official Reports at 

.]




        BORSICK, APPELLANT, v. THE STATE OF OHIO ET AL., APPELLEES.
                      [Cite as Borsick v. State, 

.]
Criminal procedure—Habeas corpus does not lie for double-jeopardy claim when
        appeal after conviction provides an adequate remedy.
       (No. 95-275—Submitted June 21, 1995—Decided August 23, 1995.)
         APPEAL from the Court of Appeals for Erie County, No. E-94-73.
                                  __________________
        {¶ 1} Appellant, David C. Borsick, was convicted of aggravated drug
trafficking and possession of a weapon under disability, each with firearm and
prior-offense-of-violence specifications, and sentenced, but the court of appeals
reversed his conviction and sentence for aggravated drug trafficking and attendant
firearm specification because of an insufficient indictment. He was reindicted and
jailed pending retrial, during which time he brought this action in habeas corpus,
alleging that to retry him would violate his Fifth Amendment right not to be placed
twice in jeopardy. The court of appeals held that habeas does not lie for double
jeopardy claims because appeal after conviction is an adequate remedy, citing
Wenzel v. Enright (1993), 

, 

, paragraph two of the
syllabus. This appeal followed.
                                  __________________
        David G. Borsick, pro se.
        Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski,
Assistant Prosecuting Attorney, for appellees.
                                  __________________
        Per Curiam.
        {¶ 2} We affirm the judgment of the court of appeals. We have recognized
that “in certain extraordinary circumstances when there is an unlawful restraint of
                             SUPREME COURT OF OHIO




a person’s liberty, habeas corpus will lie notwithstanding the fact that only
nonjurisdictional issues are involved, but only where there is no adequate legal
remedy, e.g., appeal or postconviction relief.” State ex. rel. Pirman v. Money
(1994), 

, 

. Here, appellant’s remedy is
appeal. “[T]he proper remedy for seeking judicial review of the denial of a motion
to dismiss on the ground of double jeopardy is a direct appeal to the court of appeals
at the conclusion of the trial court proceedings.” Wenzel v. Enright (1993), 

, 

, paragraph two of the syllabus. Therefore, because there
is an adequate remedy at law, habeas corpus does not lie for appellant’s double-jeopardy claim. The judgment of the court of appeals is affirmed.
                                                                 Judgment affirmed.
       MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER AND
COOK, JJ., CONCUR.
                               __________________
.




                                          2