Although I concur in the judgment, I feel that there is a jurisdictional issue which this court should consider and dispose of, sua sponte, before a consideration of the merits of the appeal is proper. The *Page 80 prosecuting attorney appeals from the sustaining of a motion to suppress certain evidence and filed the requisite certificate required by Crim. R. 12(J). However, the prosecuting attorney did not first seek leave of this court, pursuant to R. C.2945.68, to prosecute the appeal, which is a jurisdictional prerequisite.
Crim. R. 12(J) expressly provides that the prosecution has an appeal as of right from the granting of a motion to suppress evidence, stating:
"The state may take an appeal as of right from the granting of a motion * * * to suppress evidence if, in addition to filing a notice of appeal, the prosecuting attorney certifies that: (1) the appeal is not taken for the purpose of delay; and (2) the granting of the motion 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. * * *"
In State v. Hughes (1975), 41 Ohio St.2d 208, the Supreme Court held that App. R. 4(B) (which, unlike Crim. R. 12[J], does not expressly purport to confer an appeal as of right upon the state in a criminal case) is invalid insofar as it "enlarges the statutory right of appeal provided by R. C. 2945.67 through2945.70 and abridges the right of appellate courts to exercise their discretion in allowing appeals provided by these same sections." Cf. Columbus v. Youngquist (1972), 33 Ohio App.2d 317, superceded in part by Hughes.
In State v. Collins (1970), 24 Ohio St.2d 107, the Supreme Court held:
"The state may not prosecute an appeal in a criminal case from an order sustaining a pre-trial motion to suppress evidence." (Syllabus.)
In both Collins and Hughes, it is stated that the state has no right of appeal in a criminal case unless conferred by statute consistent with constitutional requisites as stated inEuclid v. Heaton (1968), 15 Ohio St.2d 65. Effective March 23, 1973 (a few months before the criminal rules took effect on July 1, 1973), the General Assembly amended R. C. 2945.70 to provide for an appeal by the state from a ruling on a motion to suppress, so that that section now provides: *Page 81
"If the court of appeals or the supreme court is of the opinion that the questions presented by a bill of exceptions should be decided, it shall allow the bill of exceptions to be filed and render a decision thereon. This decision shall not affect the judgment of the trial court in said cause, nor shall said judgment of the trial court be reversed, unless the judgment of the court of appeals or the supreme court reverses the judgment of the trial court on its ruling on a motion to quash, a plea in abatement, a demurrer, a motion to suppressevidence, or a motion in arrest of judgment. In all other cases the decision of the court of appeals or the supreme court shall determine the law to govern in a similar case." (Emphasis added.)
In Hughes, it is stated, at page 210-211:
"The effect of R. C. 2945.67 through 2945.70 is to grant jurisdiction to appellate courts to hear appeals by the prosecution in criminal cases and to create a substantive right in the prosecution to bring such appeals in the instances permitted by R. C. 2945.70 and the decisions interpreting that section.
"Moreover, the right created and the jurisdiction granted by R. C. 2945.67 through 2945.70 is limited. Those sections, as well as specifying the procedure to be followed in bringing an appeal, also limit the right of appeal by granting appellate courts discretion as to which cases will be allowed for review.
"App. R. 4(B), in providing an appeal as of right by the prosecution, enlarges the statutory right of appeal provided by R. C. 2945.67 through 2945.70 and abridges the right of appellate courts to exercise their discretion in allowing such appeals.
"App. R. 4(B) is in conflict with a substantive statutory provision and must yield to it. The Court of Appeals was correct in dismissing the appeal by reason of the failure of appellant to file a bill of exceptions pursuant to R. C. 2945.68. * * *"
Similarly, Crim. R. 12(J), in providing an appeal as of right by the prosecution from the granting of a motion to suppress evidence, enlarges the statutory right of appeal provided by R. C. 2945.67 through 2945.70 and abridges the right of appellate courts to exercise their discretion in *Page 82 allowing such appeals. Crim. R. 12(J) is in conflict with a substantive statutory provision and must yield to it.
However, this conclusion does not require a dismissal of this appeal. Rather, Hughes holds that this court has discretion as to whether to allow the instant appeal. While we may exercise that discretion by dismissing this appeal, we are not compelled to do so.
R. C. 2945.67 through 2945.70 provides no time limitation within which the prosecuting attorney must present his bill of exceptions1 and seek from this court allowance of the appeal. On the other hand, Crim. R. 12(J) provides:
"Such appeal 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. * * *" (Emphasis added.)
The prosecuting attorney has complied with the time limitation thereof. He has also presented a transcript of proceedings, the equivalent, under the appellate rules, to a bill of exceptions. While the prosecuting attorney has not expressly sought leave from this court to allow this appeal, he most certainly has brought the matter to the attention of the court that he wishes to appeal. Note that App. R. 3(A) provides: "Appeals by leave of court shall be taken in the manner prescribed by Rule 5." App. R. 5(A), however, is so phrased as to contemplate primarily delayed appeals by defendants in criminal cases rather than appeals by the prosecution.
Under the circumstances herein, I would consider the actions taken by the prosecuting attorney sufficient to constitute an application, pursuant to R. C. 2945.67, for the allowance of this appeal. Exercising the discretion vested in this court by R. C. 2945.68 through 2945.70, I would allow this appeal by the prosecuting attorney, and, since all briefs have been filed and oral argument made, I would proceed with the consideration of the merits of the appeal and concur in the majority opinion with respect thereto.
1 The Hughes case leaves it unclear as to whether App. R. 9(A), providing for a transcript of proceedings rather than a bill of exceptions, is applicable. *Page 83