State v. Bess , 2012 Ohio 3333 ( 2012 )

[Cite as State v. Bess, 2012-Ohio-3333.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO : APPEAL NO. C-110700
TRIAL NO. 11CRB-22572
Plaintiff-Appellee, :
vs. : O P I N I O N.
VIRGINETTA BESS, :
Defendant-Appellant. :
:
:
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Charge Dismissed
Date of Judgment Entry on Appeal: July 25, 2012
John Curp, City Solicitor, Charles Rubenstein, City Prosecutor, and Marva K.
Benjamin, Assistant City Prosecutor, for Plaintiff-Appellee.
Jon Sinclair, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Judge.
{¶1} Defendant-appellant Virginetta Bess appeals the judgment of the
Hamilton County Municipal Court convicting her on the charge of possession of a
vicious dog, in violation of Cincinnati Municipal Code 701-6. We reverse, because
the trial court lacked subject-matter jurisdiction where the complaint was not made
“under oath.”
{¶2} Bess was issued a citation for possession of a vicious dog—a pit
bull—within the city limits.1 The issuing officer completed and signed the citation
form, which was designed for minor-misdemeanor offenses, and filed it with the
court as a formal complaint. The officer, however, failed to execute the jurat section
of the form, thus the “complaint” was not made “under oath.”
{¶3} Bess entered a no-contest plea to the offense, and the trial court
convicted her. She now appeals.2
{¶4} In her sole assignment of error, Bess argues that where the
criminal complaint for the first-degree misdemeanor was signed but not notarized,
the trial court did not acquire jurisdiction, and the judgment of conviction is a
nullity. We agree.
{¶5} The procedure to invoke the subject-matter jurisdiction of the
municipal court for a first-degree misdemeanor is the filing of a complaint that meets
the requirements of Crim.R. 3. See Crim.R. 7(A); State v. Mbodji, 129 Ohio St.3d
325, 2011-Ohio-2880, 951 N.E.2d 1025, paragraph one of the syllabus; State v.
Miller, 47 Ohio App.3d 113, 114, 547 N.E.2d 399 (1st Dist.1988).
1 This section was amended, effective May 16, 2012, but Bess was prosecuted before the
amendment.
2 The city has not filed an appellate brief.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} Crim.R. 3 expressly requires (1) “a written statement of the
essential facts constituting the offense charged”; (2) “the numerical designation of
the applicable statute or ordinance”; and (3) that the complaint “be made under oath
before any person authorized by law to administer oaths.”
{¶7} In this case, the complaining officer’s signature was not notarized.
Thus, Bess’s contention that the complaint did not comport with the third
requirement of Crim.R. 3 is supported by the record. Consequently, the complaint
was not valid.
{¶8} In the absence of a valid charging instrument, the trial court lacked
subject-matter jurisdiction. See State v. Green, 48 Ohio App.3d 121, 121-122, 548
N.E.2d 334 (11th Dist.1988). See also Miller, 47 Ohio App.3d at 114, 547 N.E.2d 399;
State v. Brown, 2 Ohio App.3d 400, 402, 442 N.E.2d 475 (1st Dist.1981).
{¶9} Further, the issue of subject-matter jurisdiction cannot be waived
or forfeited and can be raised at any time. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-
2880, 951 N.E.2d 1025, at ¶ 10.
{¶10} Because the municipal court lacked subject-matter jurisdiction, the
resulting conviction is a nullity. Green at 121-122; Miller at 114. Therefore, we
sustain the assignment of error. The judgment of the trial court is reversed, and the
charge against Bess is dismissed.
Judgment reversed and charge dismissed.
HILDEBRANDT, P.J., and DINKELACKER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this decision.
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