2012 Ohio 3333 - State v. Bess

         [Cite as State v. Bess,

2012-Ohio-3333

.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO                                       :   APPEAL NO. C-110700
                                                        TRIAL NO. 11CRB-22572
        Plaintiff-Appellee,                         :

  vs.                                               :      O P I N I O N.

VIRGINETTA BESS,                                    :

    Defendant-Appellant.                            :

                                                    :

                                                    :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Charge Dismissed

Date of Judgment Entry on Appeal: July 25, 2012


John Curp, City Solicitor, Charles Rubenstein, City Prosecutor, and Marva K.
Benjamin, Assistant City Prosecutor, for Plaintiff-Appellee.

Jon Sinclair, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Judge.

       {¶1}       Defendant-appellant Virginetta Bess appeals the judgment of the

Hamilton County Municipal Court convicting her on the charge of possession of a

vicious dog, in violation of Cincinnati Municipal Code 701-6. We reverse, because

the trial court lacked subject-matter jurisdiction where the complaint was not made

“under oath.”

       {¶2}       Bess was issued a citation for possession of a vicious dog—a pit

bull—within the city limits.1   The issuing officer completed and signed the citation

form, which was designed for minor-misdemeanor offenses, and filed it with the

court as a formal complaint. The officer, however, failed to execute the jurat section

of the form, thus the “complaint” was not made “under oath.”

       {¶3}       Bess entered a no-contest plea to the offense, and the trial court

convicted her. She now appeals.2

       {¶4}       In her sole assignment of error, Bess argues that where the

criminal complaint for the first-degree misdemeanor was signed but not notarized,

the trial court did not acquire jurisdiction, and the judgment of conviction is a

nullity. We agree.

       {¶5}       The procedure to invoke the subject-matter jurisdiction of the

municipal court for a first-degree misdemeanor is the filing of a complaint that meets

the requirements of Crim.R. 3. See Crim.R. 7(A); State v. Mbodji,

129 Ohio St.3d 325

2011-Ohio-2880

951 N.E.2d 1025

, paragraph one of the syllabus; State v.

Miller,

47 Ohio App.3d 113, 114

547 N.E.2d 399

 (1st Dist.1988).




1 This section was amended, effective May 16, 2012, but Bess was prosecuted before the
amendment.
2 The city has not filed an appellate brief.




                                          2
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶6}       Crim.R. 3 expressly requires (1) “a written statement of the

essential facts constituting the offense charged”; (2) “the numerical designation of

the applicable statute or ordinance”; and (3) that the complaint “be made under oath

before any person authorized by law to administer oaths.”

       {¶7}       In this case, the complaining officer’s signature was not notarized.

Thus, Bess’s contention that the complaint did not comport with the third

requirement of Crim.R. 3 is supported by the record. Consequently, the complaint

was not valid.

       {¶8}       In the absence of a valid charging instrument, the trial court lacked

subject-matter jurisdiction. See State v. Green,

48 Ohio App.3d 121, 121-122

548 N.E.2d 334

 (11th Dist.1988). See also Miller,

47 Ohio App.3d at 114

547 N.E.2d 399

;

State v. Brown,

2 Ohio App.3d 400, 402

442 N.E.2d 475

 (1st Dist.1981).

       {¶9}       Further, the issue of subject-matter jurisdiction cannot be waived

or forfeited and can be raised at any time. Mbodji,

129 Ohio St.3d 325

, 2011-Ohio-

2880,

951 N.E.2d 1025

, at ¶ 10.

       {¶10}      Because the municipal court lacked subject-matter jurisdiction, the

resulting conviction is a nullity.

Green at 121-122

Miller at 114

. Therefore, we

sustain the assignment of error. The judgment of the trial court is reversed, and the

charge against Bess is dismissed.

                                                Judgment reversed and charge dismissed.



HILDEBRANDT, P.J., and DINKELACKER, J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this decision.




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