State v. Brenneman

Per Curiam. The first proposition of law presented by both parties in this canse concerns whether the Court of Appeals erred in allowing the state leave to appeal the decision of the trial court in the postconviction relief proceedings. Section 3(B)(2) of Article IV of the Constitution of Ohio provides, as did its predecessors in analogous language : “Courts of Appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the Court of Appeals within the district * * (Emphasis added.) Since the decision in Mick v. State (1905), 72 Ohio St. 388, 74 N. E. 284, it has been well established that the state may not prosecute error in criminal cases, absent a grant of express authority to do so. Thus, in Toledo v. Crews (1963), 174 Ohio St. 253, 188 N. E. 2d 592, the state was precluded from appealing the trial court’s decision in a case involving an alleged violation of a municipal ordinance, since the governing statute, R. C. 2953.14, limited the state’s right of appeal in criminal cases to instances where “a court superior to the trial court renders judgment adverse to the state.” The principle enunciated in Mick and Creios was reiterated in State v. Huntsman (1969), 18 Ohio St. 2d 206, 249 N. E. 2d 40, and in State v. Collins (1970), 24 Ohio St. 2d 107, 265 N. E. 2d 261, the latter holding that the prosecutor in a criminal case could not appeal from a trial court order sustaining a pretrial motion to suppress evidence.1 In the ease at bar, the General Assembly has provided for the appeal of judgments of the trial court in postcon-viction relief proceedings. R. C. 2953.23(B) states: “An order awarding or denying relief sought in a petition filed pursuant to Section 2953.21 of the Revised Code — 47 — is a final judgment and may be appealed pursuant to Chapter 2953 of the Revised Code.” On its face, R. C. 2953.23(B) appears to give the state the right to appeal, at some stage of the proceedings, an order awarding relief in postconviction matters. However, that section expressly provides that such an order is to be appealed “pursuant to Chapter 2953 of the Revised Code.” And, just as in Toledo v. Crews, supra (174 Ohio St. 253), the sole right of appeal granted the state in that chapter is set forth as follows: “Whenever a court superior to the trial court renders judgment adverse to the state in a criminal case * * * the state * * * may institute an appeal to reverse such judgment in the next higher court * *.” (R. C. 2953.14.) We are again unable to ignore this express limitation upon the state’s right of appeal, and find unacceptable ap-pellee’s argument that the trial court in a postconviction relief proceeding somehow becomes superior to itself. Appellee also argues that this appeal can properly be brought pursuant to R. C. 2945.67, 2945.68 and 2945.70, but attention is directed to Euclid v. Heaton (1968), 15 Ohio St. 2d 65, 238 N. E. 2d 790, and State v. Collins, supra (24 Ohio St. 2d 107). In the absence of express authority to do so, the state may not appeal an adverse judgment of the trial court in a postconviction relief proceeding. Therefore, the judgment of the Court of Appeals is reversed and the cause is remanded to that court, with instructions to vacate its judgment and to overrule the state’s motion for leave to appeal.2 Judgment reversed. O ’Neill, C. J., Herbert, StebN and W. Browit, JJ., concur. CorrigaN, Celebrezze and P. Browit, JJ., dissent. Footnotes [1] However, as advocated by the opinion in Collins, this right now exists. R. C. 2945.70, effective March 23, 1973; Cripi. R. 12 (J), effective July 1, 1973, [2] In view of the clarity of the law denying the state a right of appeal in this case, we do not reach the question of whether the motion to dismiss, filed on September 28, 1971, should have been sustained. However, see State v. Perry (1967), 10 Ohio St. 2d 175, 226 N. E. 2d 104.