State v. Waller (48 Ohio App. 2d 123, 1975)

Shannon, P. J.

This cause came on to be heard upon the record and the briefs as an appeal as of right filed by the state of Ohio pursuant to Criminal Rule 12(J).

However, prior to the argument upon the merits of the singular assignment of error, that the court below had erred in granting the defendant’s motion to supress certain evidence, this court announced to counsel that it had considered, sua sponto, what it viewed as a jurisdictional issue posed by plaintiff’s reliance on Criminal Rule 12(J) in filing an appeal without first seeking leave to appeal. After having heard, orally, from counsel and having considered further what we believe to be controlling authorities, we hold that this appeal, must be dismissed for want of jurisdiction.

Criminal Rule 12(J) provides, in material part:

“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.”

Here the state made the requisite certifications.

We begin our rationalization of the apparent anomaly created by our determination that we have no jurisdiction tp entertain the state's appeal despite the plain language of Criminal Rule 12(J) 'with a passing reference to State v. Collins (1970), 24 Ohio St. 2d 107.

The decision in Collins antedates the effective date of the Ohio Rules of Criminal Procedure and, therefore, is not truly apposite to the case at bar. It is, however, a link in the chain by which we shall bind our decision to those of the Supreme Court which bear directly, we think, upon the issue here.

The syllabus of Collins states:

“The state may not prosecute an appeal in a criminal case from an order sustaining a pre-trial motion to suppress evidence.”

In his opinion in Collins, Justice Herbert pointed out, at page 112, that:

“The ability of prosecutors to obtain review of trial court rulings on pre-trial motions to suppress evidence, involving the application of a difficult and changing area