COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67179 CITY OF NORTH OLMSTED : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION EZEQUIEL ORTIZ, JR. : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : JULY 20, 1995 CHARACTER OF PROCEEDING : Criminal appeal from Rocky River Municipal Court : Case No. 93-TRC-11192 AB JUDGMENT : Dismissed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Donald P. Albenze, Esq. Bryan K. Ramsey Prosecuting Attorney 13451 Pearl Road 23823 Lorain Road, #270 Strongsville, Ohio 44136 North Olmsted, Ohio 44070 -2- HARPER, J.: Police officers for the city of North Olmsted issued citations to defendant-appellant, Ezequiel Ortiz, Jr., on September 21, 1993. The officers cited appellant with violating sections of the Codified Ordinances of the city of North Olmsted, specifically Sections 333.01(A)(1), Driving Under the Influence ("C.O. 333.01(A)(1)"); 333.01(A)(3), Blood Alcohol Content .10 or above ("C.O. 333.01(A)(3)"); and 513.03, Possession of Marijuana under 100 grams. Appellant was also cited with violating R.C. 2925.14(C)(1), Possession of Drug Paraphernalia. A bench trial occurred in Rocky River Municipal Court in March 1994 following the denial of appellant's motion to suppress/ dismiss. Appellant was found guilty of driving under the influence and blood alcohol content over .10. The trial court rendered not guilty verdicts as to the remaining drug related charges. 1 Appellant presents four assignments of error in this appeal. The first and second claimed errors address the trial court's alleged error in not granting appellant's motion to suppress/dismiss which was based on probable cause and warrantless arrest arguments. Appellant's third assignment of error relates to the admissibility of the breathalyzer test results obtained following his arrest. The fourth alleged error relates to whether trial testimony supported appellant's convictions. A careful review of the record, however, requires a dismissal of this appeal. 1 See Appendix. -3- The trial record before this court contains two citations which were issued to appellant. One cited him with violating C.O. 333.01(A)(1), the other with C.O. 333.01(A)(3). There is nothing in the record to confirm appellant's citations for violating the drug law. On April 20, 1994, the trial court issued a journal entry which reads, "DEFENDANT IN COURT W/COUNSEL. TRIAL HAD. DEFENDANT FOUND GUILTY. PASSED FOR SENTENCE TO 5-5-94 9:30 AM." Both this entry and the entry dated May 12, 1994 which sets forth a sentence refer only to appellant's conviction for violating C.O. 333.01(A)(1). The trial court thus did not enter a signed journal entry reflecting its disposition of the remaining charges against appellant, or appellant failed to supply a complete record on appeal. This court in State v. Brown (1989), 59 Ohio App.3d 1 recognized the trial court's mandatory duty to deal with each and every charge prosecuted against a defendant. Quoting from Cleveland v. Rubinstein (Oct. 29, 1981), Cuyahoga App. No. 43415, unreported, we stated: 'Rule 32(B) of the Ohio Rules of Criminal Procedure provides: '"A judgment of conviction shall set forth the plea, the verdict or findings and sentence. If the defendant is not found guilty or for any other reason is entitled to be discharged, judgment shall be entered accordingly. The judgment shall be signed by the judge and entered by the clerk." (Emphasis added.) 'As construed by this Court the provisions of Criminal Rule 32(B) imposes on a trial court a mandatory duty to set forth the verdict or its findings as to each and every charge prosecuted against an accused, and failure to do so renders the judgment substantively deficient -4- under the rule. In [the] absence of a signed journal entry reflecting the court's ruling as to each charge, the order of the trial court is interlocutory. (Citations omitted.) 'Reviewing the record in the case at bar, we find that the trial judge failed to expressly determine which of the eleven charges resulted in convictions. Accordingly we conclude that, in [the] absence of a final appealable order, the appeal must be dismissed. ***' Brown, 2. Based upon the foregoing, with the record before this court being incomplete, appellant's appeal is dismissed. Appeal dismissed. -5- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Rocky River Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN T. PATTON, C.J., AND ANN DYKE, J., CONCUR JUDGE SARA J. HARPER N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza-tion, at which time it will become the judgment and order of the court and time period for review will begin to run. -6- APPENDIX ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AND MOTION TO DISMISS ON THE BASIS THAT THE STATE OF OHIO/CITY OF NORTH OLMSTED HAD REASONABLE SUSPICION AND PROBABLE CAUSE TO EFFECTUATE A D.U.I. ARREST WHEN IN FACT THE STATE OF OHIO/CITY OR NORTH OLMSTED POLICE OFFICER LACKED BOTH REASONABLE SUSPICION AND PROBABLE CAUSE TO STOP, DETAIN AND TO ARREST THE DEFENDANT FOR DRIVING UNDER THE INFLUENCE, BREATH ALCOHOL CONTENT .10 OR ABOVE AND SUBSEQUENT CHARGES CITED UNDER THE NORTH OLMSTED CODIFIED ORDINANCE [sic]. ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING DEFENDANT'S MOTION TO SUPPRESS AND MOTION TO DISMISS ON THE BASIS THAT THE STATE OF OHIO/CITY OF NORTH OLMSTED, WHEN ACTING THROUGH ITS POLICE OFFICERS NEED NOT OBTAIN AND FILE A COMPLAINT AND OBTAIN AN ARREST WARRANT BEFORE MAKING A DRIVING UNDER THE INFLUENCE AND BREACH ALCOHOL CONTENT .10 OR ABOVE ARREST WHEN THE OFFENSE IS NOT COMMITTED IN THE PRESENCE OF THE OFFICER IN ISSUE, WHEN THE OFFICER DID NOT OBSERVE THE DEFENDANT DRIVING, WHEN THE DEFENDANT DOES NOT ADMIT TO DRIVING AN AUTOMOBILE, AND IT IS NOT OBVIOUS TO THE OFFICER THAT THE DEFENDANT IS UNDER THE INFLUENCE OF ALCOHOL, AND THE OFFICER ONLY RELIES ON HEARSAY STATEMENT OF OPERATION OF THE VEHICLE BY THE DEFENDANT WHEN IN FACT THE CITY OF NORTH OLMSTED OFFICER DID NOT FILE A COMPLAINT AND OBTAIN AN ARREST WARRANT AND ARRESTED THE DEFENDANT FOR DRIVING UNDER THE INFLUENCE, BREATH ALCOHOL CONTENT .10 OR ABOVE ALTHOUGH HE DID NOT OBSERVE THE DEFENDANT DRIVING, THE DEFENDANT DID NOT ADMIT TO DRIVING, THE OFFICER RELIED ON HEARSAY STATEMENTS ALONE REGARDING THE DEFENANT'S [sic] OPERATION OF A MOTOR VEHICLE AND IT WAS NOT OBVIOUS TO THE OFFICER THAT THE DEFENDANT AS [sic] DRIVING UNDER THE INFLUENCE OF ALCOHOL [sic]. ASSIGNMENT OF ERROR III THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION BY NOT DISMISSING THE DRIVING UNDER THE INFLUENCE CHARGE AND THE BREATH ALCOHOL CONTENT CHARGES AGAINST THE DEFENDANT INASMUCH AS THE BREATHALYZER TEST WAS NOT DETERMINED TO BE ADMINISTERED TO THE DEFENDANT WITHIN TWO HOURS FROM THE TIME THE DEFENDANT ALLEGEDLY COMMITTED A TRAFFIC INFRACTION. -7- ASSIGNMENT OF ERROR IV THE TRIAL COURT ERRED AS A MATTER OF LAW IN ABUSING ITS DISCRETION IN NOT DISMISSING THE DRIVING UNDER THE INFLUENCE AND BREATH ALCOHOL CHARGES AGAINST THE DEFENDANT WHEN THERE WAS NO TESTIMONY AT TRIAL THAT COULD .