State v. Bistricky, 555 N.E.2d 644 (Ohio 1990). · Go Syfert
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State v. Bistricky, 555 N.E.2d 644 (Ohio 1990). Cases Citing This Book View Copy Cite
263 citation events (223 in the last 25 years) across 2 distinct courts.
Strongest positive: State v. Golsby (ohioctapp, 2020-09-29)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 21 distinct citers. How cited ↗
discussed Cited as authority (rule) State v. Golsby (2×)
Ohio Ct. App. · 2020 · confidence medium
The implication of Golsby's argument is that we need not determine whether the instruction was erroneous. {¶ 14} "Ordinarily when there is no case in controversy or any ruling by an appellate court that would result in an advisory opinion, there will be no appellate review unless the underlying legal question is capable of repetition yet evading review." State v. Bistricky, 51 Ohio St.3d 157, 158 (1990) (noting a court of appeals retains discretion to accept or decline review of matters of substantive law the state seeks to appeal in a criminal proceeding).
discussed Cited as authority (rule) State v. Rac
Ohio Ct. App. · 2019 · confidence medium
Because, from the State's perspective, the propriety of the instructions is an issue "capable of repetition yet evading review," see Bistricky at 158, 555 N.E.2d 644 , we granted the State's motion for leave to pursue this discretionary appeal.
discussed Cited as authority (rule) City of Blue Ash v. Price (2×)
unknown court · 2018 · confidence medium
Bistricky at 160, 555 N.E.2d 644 . {¶ 6} In addition to R.C. 2945.67(A), the government must comply with App.R. 5(C).
discussed Cited as authority (rule) State v. Malone
Ohio Ct. App. · 2016 · confidence medium
State’s Cross-Appeal {¶15} In the instant case, the State also filed a “Motion for Leave to Appeal” the trial court’s decision granting Malone’s Crim.R. 29 motion for acquittal on Count One, engaging in a pattern of corrupt activity, in which the State alleged that Malone committed the series of theft offenses while associating with an “enterprise”—to wit: “Frank’s Roofing” and/or “Frank’s Roofing, Inc.” This Court granted the State’s motion under R.C. 2945.67 and State v. Bistricky, which held that “a court of appeals has discretionary authority pursuant to R.…
discussed Cited as authority (rule) State v. Roberts (2×) also: Cited "see, e.g."
Ohio Ct. App. · 2012 · confidence medium
State v. Bistricky, 51 Ohio St. 3d 157, 160 (1990). 2 BACKGROUND {¶2} This case was tried to the bench with Mr. Roberts acting pro se.
discussed Cited as authority (rule) Matter of Bennett, Unpublished Decision (9-20-1999) (2×)
Ohio Ct. App. · 1999 · confidence medium
Id. at 159-160.
cited Cited "see" State v. Williams
Ohio Ct. App. · 2026 · signal: see · confidence high
See State v. Bistricky, 51 Ohio St.3d 157, 159 (1990), citing R.C. 2945.67(A).
discussed Cited "see" State v. Tate (2×)
Ohio Ct. App. · 2022 · signal: see · confidence high
See State v. Bistricky, 51 Ohio St.3d 157, 158-159 , 555 N.E.2d 644 (1990), citing Storer v. Brown, 415 U.S. 724, 737 , 94 S.Ct. 1274 , 39 L.Ed.2d 714 (1974), fn. 8; In re Protest Filed by Citizens for the Merit Selection of Judges, Inc., 49 Ohio St.3d 102 , 551 N.E. 2d 150 (1990) (“Ordinarily when there is no case in controversy or any ruling by an appellate court that would result in an advisory opinion, there will be no appellate review unless the underlying legal question is capable of repetition yet evading review.”).
cited Cited "see" State v. C.C.
Ohio Ct. App. · 2019 · signal: see · confidence high
See Bistricky, 51 Ohio St.3d at 159 .
discussed Cited "see" State v. Pendleton (2×)
Ohio Ct. App. · 2018 · signal: see · confidence high
See State v. Bistricky, 51 Ohio St.3d 157 , 555 N.E.2d 644 (1990), syllabus; State v. Hari, 2016-Ohio-2987 , 65 N.E.3d 328 , ¶ 19 (3d Dist.); State v. Roberts, 9th Dist.
discussed Cited "see" Cleveland v. Williams (2×)
Ohio Ct. App. · 2018 · signal: see · confidence high
See State v. Bistricky, 51 Ohio St.3d 157 , 555 N.E.2d 644 (1990), syllabus. {¶12} Generally, this court does not address constitutional issues unless it is absolutely necessary to do so. “‘Ohio law abounds with precedent to the effect that constitutional issues should not be decided unless absolutely necessary.’” Ohioans for Fair Representation, Inc. v. Taft, 67 Ohio St.3d 180, 183 , 616 N.E.2d 905 (1993), quoting Hall China Co. v. Pub.
discussed Cited "see" State v. Untied (2×)
Ohio Ct. App. · 2014 · signal: see · confidence high
See State v. Bistricky, 51 Ohio St.3d 157 , 555 N.E.2d 644 (1990), syllabus (“[a] court of appeals has discretionary authority pursuant to R.C. 2945.67(A) to review substantive law rulings made in a criminal case which result in a judgment of acquittal so long as the judgment itself is not appealed”).
examined Cited "see" State v. McGhee, 07ap-216 (12-4-2007) (3×)
Ohio Ct. App. · 2007 · signal: see · confidence high
See State v. Bistricky (1990), 51 Ohio St.3d 157 . {¶ 6} On May 22, 2007, this court rendered a decision on appellant's motion for leave to appeal.
discussed Cited "see" State v. Bouman, Unpublished Decision (3-1-2007)
Ohio Ct. App. · 2007 · signal: see · confidence high
See Bistricky , 51 Ohio St.3d at 159 ; State v. Wallace (1975), 43 Ohio St.2d 1 ; State v. Gump , Cuyahoga App. No. 85693, 2005-Ohio-5689 . {¶ 6} In this case, we exercised our discretionary authority and granted the state's motion for leave to appeal.
discussed Cited "see" In Re Tripplett, Unpublished Decision (12-10-1999) (2×)
Ohio Ct. App. · 1999 · signal: see · confidence high
See State v. Bistricky (1990), 51 Ohio St.3d 157 , 555 N.E.2d 644 .
cited Cited "see" State v. Hines, Unpublished Decision (12-11-1998)
Ohio Ct. App. · 1998 · signal: see · confidence high
See State v. Bistricky (1990), 51 Ohio St.3d 157 , syllabus.
discussed Cited "see" State v. Bistricky (2×)
Ohio Ct. App. · 1990 · signal: see · confidence high
See State v. Bistricky (1990), 51 Ohio St.3d 157 , 555 N.E.2d 644 .
discussed Cited "see, e.g." State v. Gray (2×)
Ohio Ct. App. · 2016 · signal: see, e.g. · confidence low
See, e.g., State v. Keeton, 18 Ohio St.3d 379 , 481 N.E.2d 629 (1985), and State v. Bistricky, 51 Ohio St.3d 157, 160 , 555 N.E.2d 644 (1990) (holding that “a court of appeals has discretionary authority pursuant to R.C. 2945.67(A) to decide whether to review substantive law rulings made in a criminal case which results in a judgment of acquittal so long as the verdict itself is not appealed.”) {¶ 82} Crim.R. 29(A) states that: The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or mo…
examined Cited "see, e.g." State v. Ross (4×)
Ohio · 2010 · signal: see also · confidence low
Additionally, “subjecting the defendant to postacquittal factfinding proceedings going to guilt or innocence violates the Double Jeopardy Clause,” and “[w]hen a successful postacquittal appeal by the prosecution would lead to proceedings that violate the Double Jeopardy Clause, the appeal itself has no proper purpose.” Smalis v. Pennsylvania (1986), 476 U.S. 140, 145 , 106 S.Ct. 1745 , 90 L.Ed.2d 116 ; see also Martin Linen Supply, 430 U.S. at 571 , 97 S.Ct. 1349 , 51 L.Ed.2d 642 (an acquittal is an order that “represents a resolution, correct or not, of some or all of the factual el…
discussed Cited "see, e.g." State v. Selinka, Unpublished Decision (10-11-2007) (2×)
Ohio Ct. App. · 2007 · signal: see also · confidence low
R. 29(C), is a final verdict within the meaning of R.C. 2945.67 (A) and is not appealable by the state as a matter of right or by leave to appeal pursuant to that statute." Id. at syllabus; see, also, State v. Keeton (1985), 18 Ohio St.3d 379 , 381 , 481 N.E.2d 629 . {¶ 8} The Ohio Supreme Court has further found that, although the State may not appeal a final verdict, "a court of appeals has discretionary authority pursuant to R.C. 2945.67 (A) to decide whether to review substantive law rulings made in a criminal case which results in a judgment of acquittal so long as the verdict itself is …
discussed Cited "see, e.g." State v. Gump, Unpublished Decision (10-27-2005) (2×)
Ohio Ct. App. · 2005 · signal: see also · confidence low
Id.; see, also, State v. Ginnard (Jan. 23, 1992), Cuyahoga App. No. 61964, 1992 Ohio App. LEXIS 213 ." {¶ 12} In this matter, the state notes that we have jurisdiction to "review the issues of law pertaining to no contest pleas" in accordance with the Supreme Court's holding in State v. Bistricky (1990), 51 Ohio St.3d 157 , 555 N.E.2d 644 , syllabus (a "court of appeals has discretionary authority pursuant to R.C. 2945.67 [A] to review substantive law rulings made in a criminal case which result in a judgment of acquittal so long as the judgment itself is not appealed"). {¶ 13} In this parti…
Retrieving the full opinion text from the archive…
The State of Ohio
v.
Bistricky
No. 89-708.
Ohio Supreme Court.
May 30, 1990.
555 N.E.2d 644
John T. Corrigan, prosecuting attorney, and Jack H. Hudson, for appellant., Weston, Hurd, Fallon, Paisley & Howley and Thomas C. Buford, for intervenor trial court., Nick Tomino, director of law, and Gary R. Williams, urging reversal for amicus curiae, city of Cleveland., Patrick A. D’Angelo, urging affirmance for amicus curiae, Cleveland Police Patrolmen’s Association., Paul L. Cox, urging affirmance for amicus curiae, Fraternal Order of Police of Ohio, Inc., Chattman, Garfield, Friedlander & Paul and Douglas J. Paul, urging affirmance for amicus curiae, Fraternal Order of Police, Cleveland Lodge No. 8.
Brown, Douglas, Holmes, Moyer, Resnick, Sweeney, Wright.
Cited by 96 opinions  |  Published
Moyer, C.J.

The state raises three issues. Two concern the substantive law questions resulting from the trial court’s rulings, and one challenges the conclusion of the court of appeals that it has no authority to review the trial court’s rulings. Because the court of appeals did not render an opinion or judgment on either of the substantive law issues, we will consider only the issue of whether a court of appeals has authority pursuant to R.C. 2945.67 to grant the state’s request for leave to appeal on substantive law rulings rendered in a criminal case that results in a judgment of acquittal pursuant to Crim. R. 29.

As the state agrees, the principles of double jeopardy preclude retrial of these defendants on the judgment of acquittal. Any resolution of the issue before us will not affect the bar to retrial. Arguably, the motion for leave to appeal from the trial court to the court of appeals was therefore moot.

Ordinarily when there is no case in controversy or any ruling by an appellate court that would result in an advisory opinion, there will be no appellate review unless the underlying legal question is capable of repetition yet evading review. Storer v. Brown (1974), 415 U.S. 724, 737, at fn. 8; In re Protest Filed by Citizens for the Merit [*159] Selection of Judges, Inc. (1990), 49 Ohio St. 3d 102, 551 N.E. 2d 150. In this instance, the underlying case in controversy has ceased to exist because principles of double jeopardy preclude retrial of the defendants. The defendants are not parties to this appeal. However, the court of appeals’ statement that it lacked authority to consider the state’s appeal suggests an interpretation of R.C. 2945.67 that will be applied to other state appeals. Therefore, the instant appeal is not moot.

Pursuant to R.C. 2945.67(A), the General Assembly has given the courts of appeals discretionary authority to decide whether to hear an appeal from a decision adverse to the state other than a final verdict. See State v. Fisher (1988), 35 Ohio St. 3d 22, 517 N.E. 2d 911.

R.C. 2945.67(A) provides in pertinent part:

“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.)

In State v. Keeton (1985), 18 Ohio St. 3d 379, 18 OBR 434, 481 N.E. 2d 629, we held at paragraph two of the syllabus that “[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 appealable by the state as a matter of right or by leave to appeal pursuant to that statute.” Similarly, in State, ex rel. Yates, v. Court of Appeals for Montgomery Cty. (1987), 32 Ohio St. 3d 30, 512 N.E. 2d 343, syllabus, we held that “[a] judgment of acquittal by the trial judge, based upon Crim. R. 29(C), is a final verdict within the meaning of R.C. 2945.67(A) and is not appealable by the state as a matter of right or by leave to appeal pursuant to that statute. * * *”[1]

However, in Keeton, and later in State v. Arnett (1986), 22 Ohio St. 3d 186, 22 OBR 272, 489 N.E. 2d 284, we held that even in a case resulting in a judgment of acquittal, the prosecution may appeal from evidentiary rulings, such as admissibility of evidence, as such rulings fall within the language of “any other decision, except the final verdict * * *” in R.C. 2945.67(A).-In seeking such appeal by leave of court, the state must follow the procedure outlined in State v. Wallace (1975), 43 Ohio St. 2d 1, 72 O.O. 2d 1, 330 N.E. 2d 697, and comply with App. R. 5(A).

The question here is whether the court of appeals may consider an appeal by the state of a substantive issue or “legal conclusion” made in a criminal proceeding. We see no distinc[*160] tion between permitting the state to appeal evidentiary rulings and the state’s ability to file an appeal from a ruling on an issue of law made by the trial court. We therefore hold that a court of appeals has discretionary authority pursuant to R.C. 2945.67(A) to decide whether to review substantive law rulings made in a criminal case which results in a judgment of acquittal so long as the verdict itself is not appealed. It is not clear to us, upon reviewing the court of appeals’ reason for denying the motion for leave to appeal, that the court of appeals exercised that discretion.

We, therefore, reverse the judgment of the court of appeals to the extent that it found no authority, pursuant to R.C. 2945.67(A), to consider the state’s appeal and remand the cause to that court to exercise its discretion to decide whether it will accept or decline review of the matters of substantive law presented.

Judgment reversed and cause remanded.

Sweeney, Holmes, Douglas, Wright, H. Brown and Resnick, JJ., concur.
1

In United States v. Martin Linen Supply Co. (1977), 430 U.S. 564, the court examined the double jeopardy rights of a defendant where acquittal is pursuant to Fed. R. Crim. P. 29(c). The court stated that “¡pjerhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that ‘[a] verdict of acquittal * * * could not be reviewed, on error or otherwise, without putting * * * [a defendant] twice in jeopardy, and thereby violating the Constitution.’ ” Id. at 571. In applying this principle, the court stated that what constitutes acquittal is not to be controlled by the form of the judge’s action. “Rather, we must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” Id.

A ruling of acquittal based on insufficiency of the evidence is just such a final resolution, and may not be appealed by the state. Id. at 572. See, also, Burks v. United States (1978), 437 U.S. 1; Wang v. Withworth (C.A.6, 1987), 811 F. 2d 952, 956-957.