[Cite as Smith v. State,
2020-Ohio-556.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CARLOS MONTEZ SMITH, : JUDGES:
: Hon. W. Scott Gwin, P.J.
Petitioner, : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, J.
-vs- :
:
STATE OF OHIO, : Case No. 2020 CA 00006
:
Respondent. : OPINION
CHARACTER OF PROCEEDING: Writ of Habeas Corpus
JUDGMENT: Dismissed
DATE OF JUDGMENT: February 18, 2020
APPEARANCES:
For Petitioner For Respondent
CARLOS MONTEZ SMITH, STEPHANIE L. WATSON
#50994 Principal Assistant Attorney General
Fairfield County Jail Criminal Justice Section
345 Lincoln Ave 150 East Gay Street, 16th Floor
Lancaster, Ohio 43130 Columbus, Ohio 43215-6001
Fairfield County, Case No. 2020 CA 00006 2
Baldwin, J.
{¶1} On January 16, 2020, Petitioner, Carlos Montez Smith filed a “Motion of
Original Action and Habeas Corpus Relief.” Mr. Smith maintains the Fairfield County
Municipal Court conducted an arraignment on October 28, 2019, and released him on a
recognizance bond. However, on October 29, 2019, a Warrant on Complaint was filed in
the Fairfield County Court of Common Pleas. Mr. Smith contends the complaint was not
filed until 2:11 p.m. on October 29, 2019 and therefore, he was detained without warrant
resulting in a constitutional violation.
{¶2} The Ohio Attorney General moved to dismiss Mr. Smith’s writ. The Court
finds the motion well-taken. If a petition does not satisfy the requirements for a properly
filed petition for writ of habeas corpus or does not present a facially viable claim, it may
be dismissed on motion by the respondent or sua sponte by the Court. Flora v. State, 7th
Dist. Belmont No. 04 BE 51, 2005-Ohio-2383, ¶ 5. Mr. Smith’s motion is deficient for a
couple reasons.
{¶3} First, Mr. Smith’s “Motion of Original Action and Habeas Corpus Relief”
does not satisfy the requirements for a properly filed writ of habeas corpus because Mr.
Smith filed a “motion” and a motion is not a complaint as required by Civ.R. 3(A). In Martin
v. Wayne Cty. Natl. Bank Trust, 9th Dist. Wayne No. 03CA0079, 2004-Ohio-4194, ¶ ¶ 11-
12, the court explained the difference between a “motion” and a “complaint.” The court
stated:
Pursuant to Civ.R. 3(A), a party must file a complaint, and obtain service
within one year from filing the complaint, in order to initiate civil
proceedings. …
Fairfield County, Case No. 2020 CA 00006 3
For the purposes of Civ.R. 3(A), the filing of a motion cannot substitute for
the filing of a complaint. … “Civ.R. 7 distinguishes a pleading from a
motion. ‘Under Civ.R. 7(A), only complaints, answers and replies
constitute pleadings.’ ” … A complaint is a pleading that need only
contain a short and plain statement of the claim showing that the party is
entitled to relief. Civ.R. 8(A)(1). Where as a “motion” is defined as an
application to the court for an order. Civ.R. 7(B)(1). A motion is not a
pleading. … Thus, in the context of this case, a party cannot initiate an
action by filing a motion.
(Emphasis sic.)
{¶4} See also Pankey v. Mahoning Cty. Court of Common Pleas, 7th Dist.
Mahoning No. 13 MA 27, 2013-Ohio-1617, ¶ 4, where the court of appeals dismissed a
writ of procedendo because relator attempted to commence the original action by filing a
motion. The court explained: “… Relator has failed to properly initiate an action in
procedendo. According to Civ.R. 3(A), a party must file a complaint and obtain service
within one year in order to initiate a civil proceeding. Relator attempted to initiate this
action by filing a motion, and a motion is not a complaint.”
{¶5} Likewise, here, Mr. Smith commenced his original action for habeas corpus
by filing a motion. The motion does not substitute for the filing of a complaint. Therefore,
Mr. Smith’s motion does not properly invoke the Court’s jurisdiction.
{¶6} Second, Mr. Smith’s motion improperly names the State of Ohio as
respondent. R.C. 2725.04(B) requires that an application for a writ of habeas corpus
specify “[t]he officer, or name of the person by whom the prisoner is … confined or
Fairfield County, Case No. 2020 CA 00006 4
restrained[.]” This Court has previously held that a petition does not comply with R.C.
2725.04(B) where it identifies the State of Ohio as respondent. See State v. Hertel, 5th
Dist. Delaware No. 18 CAA 07 0049, 2018-Ohio-5002, ¶ 32 (“ In addition, the petition
improperly names the State of Ohio as the respondent. R.C. 2725.04(B) requires that an
application for a writ of habeas corpus specify ‘[t]he officer, or name of the person by
whom the prisoner is … confined or restrained [.]’ ”); State v. Harpster, 5th Dist. Ashland
No. 12-COA-29,
2012-Ohio-5967, ¶ 5 (“Further, Petitioner has not named a proper
respondent who is alleged to have unlawful custody of Petitioner. Petitioner has named
the State of Ohio rather than a specific person alleged to have custody of Petitioner.”)
{¶7} For these reasons, Mr. Smith’s “Motion of Original Action and Habeas
Corpus Relief” is dismissed.
{¶8} The clerk of courts is hereby directed to serve upon all parties not in default
notice of this judgment and its date of entry upon the journal. See Civ.R. 58(B).
{¶9} MOTION GRANTED.
{¶10} CAUSE DISMISSED.
{¶11} COSTS TO PETITIONER.
Fairfield County, Case No. 2020 CA 00006 5
{¶12} IT IS SO ORDERED.
By: Baldwin, J.
Gwin, P.J. and
Wise, Earle, J. concur.
