COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 70068 and 70069 STATE OF OHIO : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : MICHAEL TANKERSLEY [NO. 70068] : OPINION TODD STAIMPEL [NO. 70069] : : PER CURIAM DEFENDANTS-APPELLANTS : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 31, 1996 CHARACTER OF PROCEEDING: Criminal appeals from Common Pleas Court, Nos. CR-328895B and CR-328895A. JUDGMENT: DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor L. Christopher Frey, Esq. Anthony J. Bondra, Esq. Assistant County Prosecutors Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant Patrick F. Roche, Esq. Michael Tankersley: Davis and Young 1700 Midland Building 101 Prospect Ave., W. Cleveland, OH 44115-1027 For Defendant-Appellant William T. Doyle, Esq. Todd Staimpel: 2000 Standard Building 1370 Ontario Street Cleveland, OH 44113 -2- PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.App.R. 25, the record from the Cuyahoga County Court of Common Pleas, oral argument and the briefs of counsel. Michael Tankersley and Todd Staimpel, defendants- appellants, appeal from the judgment of the Cuyahoga County Court of Common Pleas which granted the State of Ohio's, plaintiff- appellee's, motion to dismiss the underlying criminal indictment so that defendants-appellants could be reindicted at a later date. Defendants-appellants assign two errors for this court's review. Defendants-appellants' appeal is dismissed. I. THE FACTS On October 11, 1995, Michael Tankersley and Todd Staimpel, defendants-appellants, were indicted by the Cuyahoga County Grand Jury for one count of criminal damaging in violation of R.C. 2909.06 and for one count of assault in violation of R.C. 2903.13. As indicted, criminal damaging is a second degree misdemeanor and assault is a misdemeanor of the first degree. After a number of pretrial conferences, the case was called for trial on December 5, 1995. Prior to commencement of trial, the state moved the trial court to dismiss the pending indictment so that defendants-appellants could be reindicted on more serious felony charges. Defense counsel objected to the proposed dismissal and reindictment. Apparently, Todd Staimpel, defendant-appellant, had expressed a desire to enter a plea of guilty to the indictment; however, Michael Tankersley, defendant-appellant, did not wish to -3- enter a plea to the two misdemeanor offenses. The state maintained that, absent an agreement from both defendants, the case was going to be dismissed and represented to the Grand Jury. In spite of defense counsel's objections, the trial court granted the state's motion to dismiss the indictment. Defendants-appellants were jointly reindicted on December 11, 1995. In this second indictment, defendants-appellants were charged with felonious assault with a firearm and violence specification, in violation of R.C. 2903.11, and vandalism in violation of R.C. 2909.05. As indicted, felonious assault is an aggravated felony of the second degree and vandalism is a fourth degree felony. On January 5, 1996, Michael Tankersley and Todd Staimpel, defendants-appellants, filed a timely notice of appeal from the trial court's dismissal of the original indictment. On March 13, 1996, the State of Ohio moved to dismiss the consolidated appeals pursuant to R.C. 2505.02. II. FIRST AND SECOND ASSIGNMENTS OF ERROR Michael Tankersley and Todd Staimpel's, defendants-appellants', first assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED THE PROSECUTOR'S REQUEST FOR A NOLLE PROSEQUI WHERE THERE WAS NO SHOWING OF CAUSE OR GOOD CAUSE FOR SUCH REQUEST. Michael Tankersley and Todd Staimpel's, defendants- appellants', second assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE PROSECUTOR'S REQUEST FOR A NOLLE -4- PROSEQUI WHERE APPELLANT STAIMPEL OFFERED A PLEA TO THE TWO COUNTS OF THE INDICTMENT AND APPELLANT TANKERSLEY REQUESTED A TRIAL ON THOSE SAME CHARGES. Defendants-appellants argue, through their first and second assignments of error, that the trial court abused its discretion by granting the state's motion to dismiss the indictment pursuant to Crim.R. 48(A). Specifically, defendants-appellants maintain that the state failed to demonstrate "good cause" prior to the trial court's dismissal of the indictment. Defendants-appellants maintain further that the trial court erred in granting the state's motion to dismiss when the prosecutor required that Todd Staimpel's, defendant-appellant's, plea to the original indictment was to be contingent upon Michael Tankersley's, defendant-appellant's, acceptance of the identical plea agreement. The state contends that, under the circumstances of this particular case, the granting of a motion to dismiss an indictment pursuant to Crim.R. 48(A) is not a final appealable order in that it does not affect a substantial right of defendants-appellants as set forth in R.C. 2505.02. Accordingly, the state maintains that this appeal is not yet ready for review and should be dismissed. Crim.R. 48(A), which sets forth the requirements for dismissal of criminal cases by the state, provides: (A) Dismissal by the state. The state may by leave of court and in open court file an entry of dismissal of an indictment, -5- information, or complaint and the prosecution shall thereupon terminate. R.C. 2941.33, which pertains to dismissals by the state as well, states: The prosecution shall not enter a nolle prosequi in any cause without leave of the court, and good cause shown, in open court. A nolle prosequi contrary to this section is invalid. Prior to reaching the merits of defendants-appellants' argument, this court must first determine whether the trial court's granting of the state's motion to dismiss the indictment constitutes a final appealable order. R.C. 2505.02 provides in part: An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial. In State v. Eberhardt (1978), 56 Ohio App.2d 193, 381 N.E.2d 1357, this court stated: Generally speaking, the overruling of a motion to dismiss in a criminal or a civil case is not considered a final appealable order. State v. Lile (1974), 42 Ohio App.2d 89, 330 N.E.2d 452; ***. Also as a general rule, the entering of a nolle prosequi in a criminal case is not a final appealable order. In the usual case, the entry of a nolle prosequi before the accused is placed in jeopardy returns the parties to their relative positions prior to the institution of the prosecution and the accused is not -6- denied a judgment in his favor by the entry. Id. at 197, 198. In Eberhardt, supra, this court stated further: The foregoing is consistent with the general rule in Ohio that there should be one trial and one appeal. The general rules recited above do not mean, however, that these orders are not final appealable orders as a matter of law. There are unusual instances when orders which standing above are not considered final appealable orders become appealable by virtue of the exceptional circumstances under which they are rendered. In the final analysis, all such orders must satisfy the three requirements of R.C. 2505.02 -- that the order effect a substantial right in the action and in effect determine the action and prevent a judgment. Id. at 198. See also Lakewood v. Pfeifer (1992), 83 Ohio App.3d 47, 50, 613 N.E.2d 1079; State v. McWilliams (June 29, 1995), Cuyahoga App. No. 68571, unreported. In the present case, a review of the record demonstrates that the trial court's granting of the state's motion to dismiss the indictment prior to commencement of trial does not constitute a final appealable order pursuant to R.C. 2505.02 in that the order does not effect a substantial right in the action which in effect determines the action and prevents a judgment. Conversely, the dismissal of the pending indictment in this case merely returns defendants-appellants to the same position occupied prior to initiation of criminal charges and defendants-appellants are not denied a judgment in their favor by the entry. -7- In Lakewood v. Pfeifer, supra, this court determined that the trial court's denial of the City of Lakewood's motion to dismiss constituted a final appealable order since it conclusively established (1) the government could not dismiss the prosecution; (2) it resolved an important issue completely separate from the merits of the action; and (3) the order is effectively unreviewable on appeal because the deficiency in evidence would most likely preclude a conviction and, therefore, preclude an appeal. See United States v. Dupris (C.A. 8, 1981), 664 F.2d 169, 173. However, this case is distinguishable from Pfeifer in that the trial court's order in the present case did not determine the action given the state's intention to reindict defendants-appellants at a later date. Accordingly, no unusual circumstances exist in this case to warrant a departure from the general rule which states that dismissal of an indictment by the state before jeopardy attached does not constitute a final appealable order pursuant to R.C. 2505.02. Accordingly, the state's motion to dismiss the appeal is hereby granted. Appeal dismissed. -8- This appeal is dismissed. It is, therefore, considered that said appellee recover of appellants its costs herein taxed. It is ordered that a special mandate be sent to the * directing said 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. DAVID T. MATIA, PRESIDING JUDGE DIANE KARPINSKI, JUDGE TIMOTHY E. McMONAGLE, JUDGE, CONCURS IN JUDGMENT ONLY N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .