State v. Tate

{¶ 1} On May 4, 2006, appellee, Terrance Tate, was indicted for the murder of a child who had died from blunt-force injuries. Prior to the indictment, appellee gave a statement to officers of the Youngstown Police Department. Appellee later filed a motion to suppress that statement, and the motion was sustained by the Mahoning County Court of Common Pleas. The state, through the prosecutor's office, filed an immediate appeal of the suppression order, and we affirmed *Page 137 the trial court's ruling based on the violation of appellee's Miranda rights. The case was then remanded to the trial court.

{¶ 2} After remand, the state continued to prosecute this case, and as part of that prosecution, it filed two motions with the trial court to vacate the suppression order that had already been appealed to this court. On October 31, 2008, appellant, state of Ohio, filed a notice of appeal and motion for leave to appeal an entry of October 14, 2008, denying its second motion to vacate a suppression order.

{¶ 3} Appellant is attempting to pursue this appeal under the authority of R.C. 2945.67(A), which states:

{¶ 4} "A prosecuting attorney * * * may appeal as a matter of right any decision of a trial court in a criminal case, or any decision of a juvenile court in a delinquency case, which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or grants post conviction relief pursuant to sections 2963.21 to 2953.24 of the Revised Code, and mayappeal by leave of the court to which the appeal is taken anyother decision, except the final verdict, of the trial court ina criminal case or of the juvenile court in a delinquency case." (Emphasis added.) App. R. 5(C) governs the procedure for seeking leave to appeal under R.C. 2945.67(A).

{¶ 5} The decision that appellant is seeking leave to appeal is a judgment entry overruling a second motion to vacate a suppression order. As mentioned above, appellant had previously appealed the suppression order to this court, and we upheld the judgment of the trial court. State v. Tate, 7th Dist. No. 07 MA 130, 2008-Ohio-3245, 2008 WL 2583041. After the case was remanded to the trial court, appellant filed its first motion to vacate the suppression order. The motion was premised on certain letters that were sent by the defendant to the trial court, which letters may have been unknown to the prosecution at the time of the suppression hearing. The trial court overruled the motion to vacate, and appellant attempted to appeal the ruling to this court. We dismissed the appeal because it was not filed within the time limits set forth in App. R. 4.State v. Tate, 7th Dist. No. 08 MA 204, 2008-Ohio-5686,2008 WL 4785496.

{¶ 6} Appellant filed a second motion to vacate the suppression order. This motion was premised on the existence of allegedly new evidence attempting to show that certain testimony given during the suppression hearing was not entirely truthful. The trial court overruled the motion on October 14, 2008, and appellant has filed yet another appeal under the discretionary provisions of R.C. 2945.67(A).

{¶ 7} We agree with appellant that if the trial court's judgment may be appealed at all, it may be appealed only as a discretionary appeal. Although a *Page 138 prosecutor may pursue an appeal as of right of an adverse ruling on a defendant's motion to suppress, there is nothing in R.C. 2945.67(A) that allows the prosecutor to appeal as of right a subsequent motion to vacate a suppression order.

{¶ 8} Regardless of the basis on which appellant is attempting to appeal the trial court's ruling, we have no jurisdiction to accept this appeal. The Eighth District Court of Appeals has held: "There is no provision in the Rules of Criminal Procedure for a motion to vacate a final order granting a motion to suppress. `Courts in Ohio not only have no authority to reconsider a valid final judgment in criminal cases * * * they are also precluded from reentering judgment in order to circumvent the App. R. 4(A) limitation period.' State v.Myers (Nov. 18, 1993), Cuyahoga App. No. 65309, unreported [1993 WL 483554]; State v. Bernard (May 26, 2000), Montgomery App. No. 18058, unreported [2000 WL 679008]."State v. Mayo (April 24, 2002), 8th Dist. No. 80216,2002 WL 853547.

{¶ 9} The Rules of Criminal Procedure provide the state with one direct appeal of an adverse ruling of a suppression motion. Crim. R. 12(K). Appellant has pursued that appeal and was unsuccessful. Appellant has filed two further motions with the trial court to overturn not only the trial court's ruling, but also our judgment in the matter. The state in general is prohibited from filing appeals in criminal cases, and any limited rights of appeal provided by rule or statute are 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. The Ohio Supreme Court has observed that a court of appeals "lack[s] jurisdiction over an appeal challenging a trial court's ruling on a motion for reconsideration of a suppression order." State v. Bassham (2002), 94 Ohio St.3d 269,272, 762 N.E.2d 963. We see no reason to treat a motion to vacate a suppression order differently from a motion to reconsider a suppression order, particularly after we have accepted the suppression order as a final, appealable order, and affirmed the judgment of the trial court.

{¶ 10} We have no jurisdiction to entertain a discretionary appeal from the state of a judgment entry overruling a motion to vacate a suppression order. For this reason, the state's motion for leave to appeal is denied, and this appeal is hereby dismissed. Pending motions for stay of the trial court's proceedings and appointment of appellate counsel are dismissed as moot.

{¶ 11} Costs taxed against the state of Ohio.

Appeal dismissed.

DEGENARO, P.J., concurs.

DONOFRIO, J., dissents. *Page 139