Wenzel v. Enright , 68 Ohio St. 3d 63 ( 1993 )

Douglas, J.

Appellant suggests that habeas corpus is a proper remedy for an accused seeking pretrial appellate review of a trial court’s decision denying a motion to dismiss on the ground of double jeopardy. We disagree. For the reasons that follow, we affirm the judgment of the court of appeals dismissing appellant’s petition for a writ of habeas corpus.

In Owens v. Campbell (1971), 27 Ohio St.2d 264, 56 O.O.2d 158, 272 N.E.2d 116, this court held, in the syllabus, that:

“The extraordinary original jurisdiction granted to an Ohio appellate court may be invoked to adjudicate the right of an accused to the benefit of the doctrine of collateral estoppel, made applicable to the state as being within the federal constitutional right against double jeopardy by Ashe v. Swenson [1970], 397 U.S. 436 [90 S.Ct. 1189, 25 L.Ed.2d 469].”

Owens was subsequently overruled in State v. Thomas (1980), 61 Ohio St.2d 254, 15 O.O.3d 262, 400 N.E.2d 897, paragraph one of the syllabus. This court, in Thomas, noted that the Owens decision did not specify which of the five extraordinary writs provided the proper vehicle by which an accused could obtain pretrial appellate review of a claim of former jeopardy. Id., 61 Ohio St.2d at 256, 15 O.O.3d at 263, 400 N.E.2d at 900. The court in Thomas observed that the Owens decision “carefully avoided” designating habeas corpus as the proper remedy, and that prohibition clearly did not lie to address such claims. Id., 61 Ohio St.2d at 256-257, 15 O.O.3d at 263-264, 400 N.E.2d at 900-901. Nevertheless, the court in Thomas provided a mechanism for immediate appellate review of the denial of a motion to dismiss on the basis of double jeopardy, holding, in paragraph one of the syllabus:

“The overruling of a motion to dismiss on the ground of double jeopardy is a final appealable order under R.C. 2953.02 and 2505.02 (Owens v. Campbell [1971], 27 Ohio St.2d 264 [56 O.O.2d 158, 272 N.E.2d 116], overruled).”

In Crago, supra, 53 Ohio St.3d 243, 559 N.E.2d 1353, we had occasion to revisit the holding in Thomas that the denial of a motion to dismiss on the ground of double jeopardy constitutes a final appealable order. In Crago, syllabus, we held that:

“The overruling of a motion to dismiss on the ground of double jeopardy is .not a final appealable order. (R.C. 2505.02, construed and applied; State v. Thomas [1980], 61 Ohio St.2d 254, 15 O.O.3d 262, 400 N.E.2d 897, paragraph one of the syllabus, overruled.)” (Emphasis added.)

In Crago, we overruled only the first paragraph of the syllabus in Thomas, without disturbing the clear implication in Thomas that none of the extraordinary writs appeared to provide an appropriate method for challenging the denial of a motion to dismiss on the ground of double jeopardy.

It is clear from a review of the foregoing authorities that a trial court’s decision denying a motion to dismiss on the ground of double jeopardy is not a final appealable order subject to immediate appellate review. Crago, supra, syllabus. Furthermore, the decision in Thomas overruling Owens clearly indicates that the extraordinary original jurisdiction of an appellate court may not be invoked to secure pre-trial appellate review of claims of double jeopardy. We reject any notion that our holding in Crago (overruling paragraph one of the syllabus in Thomas) revived the holding in Owens that the extraordinary original jurisdiction of appellate courts may be invoked by the accused prior to trial to adjudicate claims of double jeopardy.

Today, we specifically decline appellant’s invitation to return to the state of the law as it existed under Owens. In our judgment, none of the five extraordinary writs, including habeas corpus, constitutes a proper avenue for an accused to test a trial court’s ruling on the issue of double jeopardy. We reach this conclusion for two reasons. First, there exists an adequate remedy in the ordinary course of law to challenge an adverse ruling on the issue, to wit: an appeal to the court of appeals at the conclusion of the trial court proceedings. Second, none of the five extraordinary writs seems applicable in a situation where an accused seeks to avoid trial based upon claims of double jeopardy.

To avoid any further confusion on this issue, we now hold that the decision of a trial court denying a motion to dismiss on the ground of double jeopardy is not a final appealable order, and is not subject to judicial review through an action in habeas corpus or prohibition, or any other action or proceeding invoking the original jurisdiction of an appellate court. We further hold that, in Ohio, the proper remedy for seeking judicial review' of the denial of a motion to dismiss on the ground of double jeopardy is a direct appeal to the court of appeals at the conclusion of the trial court proceedings.¹

Accordingly, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Moyer, C.J., Resnick and F.E. Sweeney, JJ., concur. A.W. Sweeney, Wright and Pfeifer, JJ., dissent.

1 . We are aware of the United States Supreme Court’s decision in Abney v. United States (1977), 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651, which held that the denial of a motion to dismiss on double jeopardy grounds is a “final decision” within the meaning of Section 1291, Title 28, U.S.Code, and is subject to immediate appellate review. Id. at 656-662, 97 S.Ct. at 2038-2042, 52 L.Ed.2d at 657-662. In Crago, supra, syllabus, we resolved the issue differently under our state law defining final orders. Abney does not mandate, as a matter of federal constitutional law, that a state provide a mechanism for an interlocutory appeal from the denial of a motion to dismiss on grounds of double jeopardy.