Just a few weeks ago, on September 20, 2012, the Franklin County Court of Appeals clarified a trial court’s options after a mistrial. Specifically, Crim.R. 48. In this case, Mr. Noor Elqatto struck the victim one time outside a bar. The victim fell and suffered serious physical harm. Mr. Elqatto was indicted for a 2nd degree felony assault. After 3 days of testimony, the jury could not reach a verdict – 6 in favor of acquittal and 6 in favor of guilty. A mistrial was declared.
Before the re-trial, the defendant filed a “Memorandum” with the Court highlighting a trial court’s inherent authority to dismiss criminal indictments and complaints over the objection of the State. Here is the relevant language in Crim.R. 48(B): “Dismissal by the court. If the court over objection of the state dismisses an indictment, information, or complaint, it shall state on the record its findings of fact and reasons for the dismissal.”
The trial judge cited 7 reasons for dismissing the indictment over the objection of the State.
The State of Ohio appealed the dismissal arguing that it abused its discretion. This argument failed. Abuse of discretion requires the court of appeals to conclude that the trial judge’s decision is unreasonable, arbitrary or unconscionable. A court of appeals is not permitted to find an abuse of discretion merely because it would have arrived at a different result if it had reviewed the matter de novo. The Franklin Count Court of Appeals ruled that the trial judge did not abuse its discretion in dismissing the indictment over the objection of the State.
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The trial judge dismissed the indictment after the mistrial because the State indicated it would not admit new evidence, it did not have new arguments, there was no alleged misconduct by the jurors or counsel, the jury was evenly divided, the lack of seriousness of the offense, judicial economy and fairness to the defendant to bear the financial burden of a re-trial. Because the trial court stated these reasons, the record was protected for an abuse of discretion challenge.
However, the Court of Appeals did wind up reversing the trial judge’s dismissal pursuant to Crim.R. 48(B) because the dismissal was “with prejudice.” The court ruled that 48(B) dismissals are without prejudice. The court found that 48(B) does not specifically permit dismissals with prejudice. The rule in Ohio is that a 48(B) dismissal can only be with prejudice if a constitutional or statutory right of the accused has been implicated that, in and of itself, would bar subsequent prosecution.
Thus, this case is remanded for the trial court to dismiss it all over again but this time “without prejudice” to re-filing.