arguing the majority erred in allowing discretionary appeals on evidentiary issues after the verdict because the state had an adequate interlocutory remedy
How later courts described this case
- arguing the majority erred in allowing discretionary appeals on evidentiary issues after the verdict because the state had an adequate interlocutory remedy
Written by the judges who cited it.
The opinion
Wright, J.
The sole issue raised in this appeal is whether the state may seek leave to appeal an order under R.C. 2945.67 after a jury has returned a verdict of acquittal. R.C. 2945.67(A) provides:
“A prosecuting attorney * * * may appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, of the trial court in a criminal case * * *.” (Emphasis added.)
A comparable situation was presented to this court in State v. Keeton (1985), 18 Ohio St. 3d 379 . In that case, the trial court entered judgments of acquittal and the state sought leave to appeal various evidentiary rulings that it contended were erroneous. The court of appeals dismissed the *188 appeals claiming it lacked jurisdiction because a final verdict had been issued.
This court held at 381:
“A directed verdict of acquittal by the trial judge in a criminal case is a ‘final verdict’ within the meaning of R.C. 2945.67(A) which is not ap-pealable by the state as a matter of right or by leave to appeal pursuant to that statute.
“However, the evidentiary rulings in this case, while they do not fall within the provisions of R.C. 2945.67(A) granting an appeal as of right, do fall within the language of ‘any other decision, except the final verdict * * *’ in R.C. 2945.67(A) which permits an appeal to the court of appeals after leave has first been obtained.
“The state in seeking ‘appeal by leave of the court to which the appeal is taken’ under R.C. 2945.67(A) must follow the procedure outlined in State v. Wallace (1975), 43 Ohio St. 2d 1 [ 72 O.O.2d 1 ]. This includes compliance with App. R. 5(A). Under these procedural guidelines the court of appeals in this cause must decide, upon remand, whether in its sound discretion the state should be granted leave to appeal the above-mentioned decision of the trial court.”
Accordingly we reiterate that, pursuant to R.C. 2945.67(A), a court of appeals has jurisdiction to grant the state leave to appeal from a decision of the trial court on the admissibility of evidence, notwithstanding the acquittal of the defendant.
Thus, we reverse the judgment of the court of appeals and remand this cause to that court for further proceedings in accordance with this opinion.
Judgment reversed and cause remanded.
Locher, Holmes, C. Brown and Douglas, JJ., concur.
Celebrezze, C.J., and .Sweeney, J., dissent.