State v. Simms, Unpublished Decision (12-7-2001)
State v. Simms, Unpublished Decision (12-7-2001)
Opinion of the Court
DECISION AND JUDGMENT ENTRY The State of Ohio appeals the decision of the Athens County Municipal Court dismissing its case for lack of criminal jurisdiction. It assigns the following error:
THE TRIAL COURT ERRED IN RULING THAT R.C.
3791.04 IS NOT A CRIMINAL PROVISION OF THE OHIO REVISED CODE.
Finding no merit in the assigned error, we affirm the judgment of the trial court.
In February, 2001, the State filed a criminal complaint in Athens County Municipal Court charging appellee, Dan Simms, with a violation of R.C.
[T]he Court finds that while O.R.C. § 3194.04(J) (sic) provides that a person who violates O.R.C.
3791.04 shall be fined not more than $500.00, it does not provide that a person violating the code section is guilty of a misdemeanor. Therefore, the Court finds that it lacks criminal jurisdiction over the Complaint filed against [appellee]. Appellant filed a timely notice of appeal.
The issue before us is whether a violation of R.C.
Chapter 3791 of the Revised Code is entitled "Building Standards Offenses and Penalties." The word "criminal" is conspicuously lacking. While offenses are generally construed as being criminal in nature, see Black's Law Dictionary, (Abridged 6 Ed. 1991) 745, penalties are often imposed for civil violations. See R.C.
Conversely, the legislature specifically enacted R.C.
Whoever violates division (B) of section
3791.11 or division (D) of section of3791.21 of the Revised Code is guilty of a minor misdemeanor. Id.
R.C.
In addition, R.C.
Appellant's reliance on State v. Seckler (Dec. 3, 1999), Ottawa App. No. OT-99-023, unreported, is misguided. While the Sixth District Court of Appeals did uphold a criminal violation of 3791.04(B), the question of whether the violation was a criminal or civil cause of action was not before the court. The court there was only faced with whether the appellant did in fact violate the statute. The holding in Seckler is neither binding nor persuasive in our determination that R.C.
Appellant also relies on other unrelated chapters of the Revised Code to justify its position. Nevertheless, as we previously stated, we will look only to the precise words of the statute when it is apparent that the statute is clear on its face. Bailey, supra,
Since we are unaware of any other statutory provisions that would make a violation of R.C.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, P.J. Kline, J. Concur in Judgment and Opinion.
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