construing R.C. 1901.34(A) to "indicate[] that a city prosecutor has the authority to prosecute criminal cases in the municipal court" and R.C. 1901.34(C) to "indicate[] that a city prosecutor performs the same duties as a No. 20AP-579 3 county prosecuting attorney"
How later courts described this case
- construing R.C. 1901.34(A) to "indicate[] that a city prosecutor has the authority to prosecute criminal cases in the municipal court" and R.C. 1901.34(C) to "indicate[] that a city prosecutor performs the same duties as a No. 20AP-579 3 county prosecuting attorney"
Written by the judges who cited it.
The opinion
Harsha, Judge,
dissenting.
I respectfully dissent. The majority opinion erroneously holds that R.C. 1901.34 gives the city solicitor the authority to make a binding plea bargain on the felony charge of felonious assault. In doing so, it conveniently overlooks the express limiting language of R.C. 1901.34(C) that states that the solicitor performs the same duties as the prosecuting attorney “ * * * insofar as they are applicable * * The solicitor has no authority to take a plea on felony cases since the municipal court has no authority to ultimately determine them. See
State v. Nelson
(1977), 51 Ohio App.2d 31 , 5 O.O.3d 158 , 365 N.E.2d 1268 , and Crim.R. 5(A)(5) and (B)(4).
The majority opinion goes on to distinguish the holding in
Nelson
concerning the effect of an invalid plea bargain on jurisdictional grounds. While I
*282
agree the Ironton Municipal Court had full jurisdiction over defendant and the misdemeanor charge, its jurisdiction concerning the felony is clearly limited as noted above. It had no jurisdiction to terminate the felony prosecution with prejudice absent some then existing constitutional violation of defendant’s rights.
A discharge under Crim.R. 5(B)(4)(c) is not a bar to further prosecution.
Nelson, supra.
Nor, absent other circumstances, is a
nolle
under Crim.R. 48(A).
State v. Dixon
(1984), 14 Ohio App.3d 396 , 14 OBR 513, 471 N.E.2d 864 . The only way for the municipal court and the solicitor to legally preclude felony consideration by the grand jury is to take a plea upon a lesser included offense. The Double Jeopardy Clause of the United States and Ohio Constitutions would then preclude a second conviction upon the same criminal act.
Because the majority mistakenly believes that the municipal court “exercised option two” in finding a misdemeanor has been committed under Crim.R. 5(B)(4)(b), they consider this to be a double jeopardy case. It is not. Eluding under R.C. 4511.02 is not a lesser included offense of felonious assault under the test set forth in
State v. Kidder
(1987), 32 Ohio St.3d 279 , 513 N.E.2d 311 .
Since the solicitor had no authority to bind the state on the felony charge, the prosecuting attorney was free to pursue an indictment on the felonious assault.
State v. Mathews
(1982), 8 Ohio App.3d 145 , 8 OBR 202, 456 N.E.2d 539 . Appellant’s strongest argument in seeking enforcement of the invalid plea bargain lies in the Fifth Amendment due process concept of fundamental fairness. In that regard, see 2 LaFave & Isreal, Criminal Procedure (1984), Section 20.2.
However, because I believe these interests can be served by less drastic means than discharging the appellant, while at the same time serving the legitimate interests of the citizens of Ohio and the judicial system, I do not concur with the majority. Specifically, I would allow the appellant to withdraw his guilty plea to the misdemeanor and proceed in whatever manner he chooses in that regard. While it might be said that he has already served ninety days in jail which cannot be returned to him, that issue can be addressed in a civil action should he ultimately be found not guilty of the eluding charge. While this may not be an entirely equitable judicial solution, it is far preferable to the judicial expansion of the jurisdictional power of the municipal court and city solicitor which the majority opinion grants.