[This decision has been published in Ohio Official Reports at
94 Ohio St.3d 269.]
THE STATE OF OHIO, APPELLEE, v. BASSHAM, APPELLANT.
[Cite as State v. Bassham, 2002-Ohio-797.]
Appellate procedure—Motion for clarification of a final order does not affect the
time requirements for filing a notice of appeal.
(No. 00-1517—Submitted October 17, 2001 at the Greene County Session—
Decided February 27, 2002.)
APPEAL from the Court of Appeals for Greene County, No. 2000CA29.
__________________
SYLLABUS OF THE COURT
A motion for clarification of a final order does not affect the time requirements for
filing a notice of appeal.
__________________
FRANCIS E. SWEENEY, SR., J.
{¶ 1} At about 1:45 a.m. on September 3, 1999, Officer Joseph Topiah of
the Beavercreek Police Department observed appellant, Brian J. Bassham, commit
a traffic offense. After stopping appellant’s vehicle, Officer Topiah detected a
slight odor of alcohol coming from appellant’s mouth and noted that appellant’s
eyes were glassy and bloodshot. Based on these initial observations, he gave
appellant a series of field sobriety tests. After the officer observed appellant fail
one of these tests, he decided to arrest appellant. At the station, appellant was given
a breath-alcohol-content test (“BAC”). Appellant was later charged with operating
a vehicle while under the influence of alcohol and with a prohibited breath-alcohol
content in violation of R.C. 4511.19 and with failure to yield when entering a road
from a private drive in violation of R.C. 4511.44.
{¶ 2} On October 5, 1999, appellant moved to suppress evidence. After a
hearing on the motion, a magistrate determined that the officer was justified in
SUPREME COURT OF OHIO
making the stop but did not have probable cause to arrest appellant for a D.U.I.
offense. Based on these findings, the magistrate suppressed “the officer’s
observations” and the results of the BAC test. On February 1, 2000, the trial court
overruled the state’s objections to the magistrate’s findings and affirmed the
magistrate’s decision. On March 6, 2000, the state, appellee, filed a “motion for
clarification” requesting a clarification as to what observations were suppressed.
The trial court granted the motion, and in its March 15, 2000 judgment entry
clarified that only the officer’s observations prior to the stop were admissible; the
observations made after the stop were inadmissible. Thereafter, the state filed its
former Crim.R. 12(J), now Crim.R. 12(K), certification and appealed this judgment
within seven days of the entry. The court of appeals reversed the trial court’s
judgment and remanded the cause. In its decision, the appellate court overruled
appellant’s request to dismiss the appeal, finding that the appeal was timely filed
under former Crim.R. 12(J), now Crim.R. 12(K). This cause is now before this
court pursuant to the allowance of a discretionary appeal.
{¶ 3} The issue is whether the state’s appeal was timely filed. We find that
the appeal was untimely and that the court of appeals was without jurisdiction to
hear it. Therefore, we vacate the judgment of the court of appeals and dismiss the
cause.
{¶ 4} The parties dispute which order should have been appealed.
Appellant argues that the appeal should have been taken from the February 1 order.
Since the state neglected to file a notice of appeal within seven days of this order,
appellant maintains that the court was without jurisdiction to consider this appeal.
However, the state asserts that there was no final appealable order until the state
certified that it was one pursuant to former Crim.R. 12(J), now Crim.R. 12(K). In
this case, the state contends that it could not make this certification until the
suppression order was clarified. Thus, it was only after the order was clarified on
March 15 that the decision became a final appealable order.
2
January Term, 2002
{¶ 5} Both R.C. 2945.67 and former Crim.R. 12(J), now Crim.R. 12(K),
establish the state’s right to appeal from the granting of a pretrial motion to
suppress. R.C. 2945.67 states:
“(A) A prosecuting attorney … may appeal as a matter of right any
decision of a trial court in a criminal case … which decision grants … a motion
to suppress evidence ….”
{¶ 6} Former Crim.R. 12(J), now Crim.R. 12(K), defines the procedure for
the state’s appeal:
“(J) Appeal by state. When the state takes an appeal as provided by law
from an order suppressing or excluding evidence, the prosecuting attorney shall
certify that: (1) the appeal is not taken for the purpose of delay; and (2) the ruling
on the motion or motions has rendered the state’s proof with respect to the pending
charge so weak in its entirety that any reasonable possibility of effective
prosecution has been destroyed.”
{¶ 7} A final order is any order that in effect determines the case. State v.
Davidson (1985), 17 Ohio St.3d 132, 134, 17 OBR 277, 279,
477 N.E.2d 1141,
1144. In State v. Malinovsky (1991),
60 Ohio St.3d 20, 22,
573 N.E.2d 22, 24, we
recognized that where an evidentiary ruling destroys the state’s case, the ruling is
in essence a final order from which the state may appeal. Former Crim.R. 12(J),
now Crim.R. 12(K), and App.R. 4(B)(4)1 further provide that the state must file its
notice of appeal within seven days of the final order granting the motion to
suppress.
1. Former Crim.R. 12(J), now Crim.R. 12(K), further provides:
“The appeal from an order suppressing or excluding evidence shall not be allowed unless
the notice of appeal and the certification by the prosecuting attorney are filed with the clerk of the
trial court within seven days after the date of the entry of the judgment or order granting the motion.
Any appeal taken under this rule shall be prosecuted diligently.”
App.R. 4(B)(4) states: “Appeal by prosecution. In an appeal by the prosecution under
Crim.R. 12(J) …, the prosecution shall file a notice of appeal within seven days of entry of the
judgment or order appealed.”
3
SUPREME COURT OF OHIO
{¶ 8} The state’s position that the appeal time did not start running until the
state certified the case would impermissibly allow the state to determine the time
limits for its appeal and is contrary to the intended scope of former Crim.R. 12(J),
now Crim.R. 12(K). The rule provides the state with only a limited right of appeal.
It is an exception to the general rule prohibiting appeals by the state in criminal
prosecutions and thus must be strictly construed. State v. Caltrider (1975), 43 Ohio
St.2d 157,
72 O.O.2d 88,
331 N.E.2d 710, paragraph one of the syllabus.
{¶ 9} The February 1 order clearly states that the observations of the officer
and the BAC results were suppressed. This broad and unequivocal language
destroyed the state’s ability to prosecute the case. Without the only eyewitness’s
observations and the test results, there was nothing left to try. Because the state
failed to timely avail itself of its limited appeal rights after the judgment was
entered, the court below lacked jurisdiction to hear the appeal. See State v.
Buckingham (1980), 62 Ohio St.2d 14, 16,
16 O.O.3d 8, 10,
402 N.E.2d 536, 538.
{¶ 10} However, in an apparent attempt to circumvent the mandatory
language of former Crim.R. 12(J), now Crim.R. 12(K), the state, after waiting
thirty-four days after the order, moved for clarification as to what observations of
the officer were suppressed.
{¶ 11} Appellant argues that such a motion is a nullity and does not affect
the time limit for an appeal. For support, appellant cites Pitts v. Ohio Dept. of
Transp. (1981), 67 Ohio St.2d 378,
21 O.O.3d 238,
423 N.E.2d 1105, and the
appellate court’s own decision in State v. Flynn (Mar. 6, 1987), Montgomery App.
No. CA10152, unreported,
1987 WL 7502.
{¶ 12} In Pitts, this court held that under the Ohio Rules of Civil Procedure
there was no provision for a motion for reconsideration after a final judgment in the
trial court. We also determined that such a motion is a nullity, the filing of which
does not affect the time requirements for filing a notice of appeal.
4
January Term, 2002
{¶ 13} In Flynn, the same court of appeals as in the case at bar applied Pitts
and found that it lacked jurisdiction over an appeal challenging a trial court’s ruling
on a motion for reconsideration of a suppression order. The appellate court should
have followed its own decision and ruled that the motion for clarification did not
toll the time within which the prosecution should have filed its appeal.
{¶ 14} Accordingly, we hold that a motion for clarification of a final order
does not affect the time requirements for filing a notice of appeal. Thus, the
appellate court was without jurisdiction to hear the appeal. If the state believed that
the original suppression order was a misapplication of the law or needed further
refinement, it was still obligated to file its notice of appeal within seven days of that
order. A motion for clarification, filed thirty-four days out of time, cannot extend
that time. Accordingly, the judgment of the court of appeals is reversed and the
cause is dismissed.
Judgment reversed
and cause dismissed.
MOYER, C.J., DOUGLAS, PFEIFER and LUNDBERG STRATTON, JJ., concur.
COOK, J., concurs in syllabus and judgment.
RESNICK, J., concurs in judgment.
__________________
ALICE ROBIE RESNICK, J., concurring in judgment.
{¶ 15} Each appeal certified by the state pursuant to R.C. 2945.67 and
former Crim.R. 12(J), now Crim.R. 12(K), is unique. As a result, I am unable to
join the syllabus or opinion, since the majority generalizes these appeals and fails
to distinguish instances when an appeal may be timely even though filed outside
what would normally be the allowable time limits.
{¶ 16} When a trial court issues an order suppressing evidence in a criminal
case, the onus is on the prosecutor to determine whether the remaining evidence is
enough for effective prosecution. If the prosecutor determines that effective
5
SUPREME COURT OF OHIO
prosecution is no longer possible, the prosecution may appeal the trial court’s ruling
within seven days. When filing this appeal, the prosecutor must certify that “the
appeal is not taken for the purpose of delay” and that the trial court’s ruling has
destroyed “any reasonable possibility of effective prosecution.” Former Crim.R.
12(J), now Crim.R. 12(K).
{¶ 17} The majority opinion, in equating an order to suppress evidence that
is subject to appeal under former Crim.R. 12(J), now Crim.R. 12(K), with the
typical final appealable order at issue in Pitts v. Ohio Dept. of Transp. (1981), 67
Ohio St.2d 378,
21 O.O.3d 238,
423 N.E.2d 1105, fails to appreciate the nuances
of an appeal under former Crim.R. 12(J), now Crim.R. 12(K).
{¶ 18} In State v. Bertram (1997), 80 Ohio St.3d 281, 283-284,
685 N.E.2d
1239, 1241, this court recognized the significance of the word “certify” in former
Crim.R. 12(J), now Crim.R. 12(K). The rule places a good faith obligation on the
prosecutor in the exercise of discretion when complying with the rule’s
requirements. The decision whether to file such an appeal is the prosecutor’s alone.
It is not for the trial court to make the choice required by the rule. State v. Fraternal
Order of Eagles Aerie 0337 Buckeye (1991),
58 Ohio St.3d 166, 169,
569 N.E.2d
478, 481. Furthermore, it is not for the court of appeals to second-guess the
reasonableness of the prosecutor’s decision. State v. Bertram, paragraph two of the
syllabus.
{¶ 19} In this case, there is no question that the trial court’s ruling of
February 1, 2000, destroyed the state’s ability to effectively prosecute. It is clear
that this original suppression order was broader than was the order of March 15,
2000, on the state’s motion for clarification. If the ruling of March 15 destroyed
the state’s ability to prosecute, as the prosecution certified after that ruling, the order
of February 1 destroyed the ability to prosecute to an even greater extent. For this
reason, I agree with the majority that based upon the facts of this case, the February
1 order triggered the seven-day period provided in former Crim.R. 12(J), now
6
January Term, 2002
Crim.R. 12(K), and App.R. 4(B)(4).2 Therefore, I agree with the judgment of the
majority that the state’s appeal is untimely.
{¶ 20} In this case there is no question that the prosecutor could have made
the certification required by former Crim.R. 12(J), now Crim.R. 12(K), in good
faith after the February 1 order without violating the rule’s certification
requirement. However, there are some instances when a prosecutor can be placed
in a dilemma by a trial court’s ruling on a motion to suppress. A prosecutor who is
faced with an unclear trial order cannot reasonably be expected to certify that the
chance for effective prosecution has been destroyed until the decision of the court
is clarified. If the prosecutor is forced to file an appeal from an unclear order, as
the majority’s syllabus seems to require, the prosecutor may be certifying
something that in actuality does not destroy “any reasonable possibility of effective
prosecution.” In that situation, the prosecutor faces a dilemma—if the prosecutor
does choose to file a certified appeal it may appear in hindsight that he or she did
not act in good faith if the trial court’s order as clarified does not destroy the chance
to prosecute, but if the prosecutor chooses not to appeal, he or she may lose the
opportunity to appeal if the trial court’s ruling as later clarified does destroy the
chance to prosecute.
{¶ 21} In most cases involving an appeal from an order whose finality is in
question, an appeal can be filed as a provisional safeguard. In those typical cases,
the appeal that turns out to have been premature or unnecessary is simply dropped
and the case continues in the trial court. However, a Crim.R. 12(K) appeal is
different, because of the rule’s certification requirement and the ethical implications
of the rule. A prosecutor trying to decide whether to appeal under Crim.R. 12(K)
2. App.R. 4(B)(4) provides, “In an appeal by the prosecution under Crim.R. 12(J) or Juv.R. 22(F),
the prosecution shall file a notice of appeal within seven days of entry of the judgment or order
appealed.” App.R. 4(B)(4) thus continues to refer to Crim.R. 12(J) although it should have been
amended to refer to Crim.R. 12(K) when Crim.R. 12 was amended and renumbered effective July
1, 2001.
7
SUPREME COURT OF OHIO
cannot in good faith file such a provisional appeal if he or she does not reasonably
believe that the chance for effective prosecution has been destroyed—and if the
trial court’s ruling is unclear, it is sometimes impossible for the prosecutor to make
the required decision.
{¶ 22} Consequently, I believe that there are situations in which a motion
for clarification of an order suppressing evidence should extend the time for filing
a notice of appeal. The seven-day period for filing an appeal pursuant to Crim.R.
12(K) cannot begin to run when an order is so ambiguous that it does not allow the
prosecutor to make a reasoned decision whether an appeal is appropriate. In such
a situation, the appeal time should begin to run only when the ambiguous order has
been clarified.
__________________
Joseph W. Stadnicar, Beavercreek Prosecutor, for appellee.
Michael A. Buckwalter, for appellant.
W. Andrew Hasselbach, urging reversal for amicus curiae, Ohio
Association of Criminal Defense Lawyers.
__________________
8
