OPINIONS OF THE SUPREME COURT OF OHIO
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Wenzel, Appellant, v. Enright, Clerk, et al., Appellees.
[Cite as Wenzel v. Enright (1993),     Ohio St.3d     .]
Criminal procedure -- Decision of trial court denying
     motion to dismiss on ground of double jeopardy is not
     a final appealable order -- Proper remedy for seeking
     judicial review is a direct appeal to court of
     appeals at conclusion of trial court proceedings.
                            ---
1.   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.
2.   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.
                            ---
     (No. 92-2115 -- Submitted October 12, 1993 -- Decided
December 22, 1993.)
     Appeal from the Court of Appeals for Franklin County,
No. 92AP-737.
     In September 1988, Mark Scott Wenzel, appellant, was
indicted in Fairfield County for theft of drugs in
violation of former R.C. 2925.21, and for aggravated
trafficking in violation of R.C. 2925.03. The conduct
giving rise to the charges was alleged to have occurred on
or about August 18, 1988. As a result of plea
negotiations, appellant pled guilty to the charge of
aggravated trafficking. The charge of theft of drugs was
dismissed. The trial court sentenced appellant for the
offense of aggravated trafficking. Thereafter, appellant
was granted a motion for shock probation, and was released
from custody.
     In November 1988, appellant was indicted in Franklin
County for theft of drugs, aggravated trafficking and
possession of a dangerous drug. The conduct giving rise
to these charges was alleged to have occurred on or about
August 20, 1988. Prior to trial, appellant filed, in the
Court of Common Pleas of Franklin County, a motion to
dismiss the indictment, claiming that the charges against
him were related to those which he had previously faced in
Fairfield County. Therefore, appellant urged that a trial
on the Franklin County charges would constitute double
jeopardy. Appellant's motion was denied.
     Appellant appealed the denial of his motion to
dismiss to the Court of Appeals for Franklin County. The
court of appeals, relying on the case of State v. Crago
(1990), 

, 

, dismissed the
appeal for lack of a final appealable order. Appellant
then appealed to this court. On May 29, 1991, we
overruled appellant's motion for jurisdiction. See State
v. Wenzel (1991), 

, 

.
     Appellant's trial in Franklin County was set to
commence on June 8, 1992. However, on June 5, 1992,
appellant filed, in the Court of Appeals for Franklin
County, a petition for a writ of habeas corpus, again
seeking pre-trial appellate review of his claims of double
jeopardy. In his petition, appellant alleged that he was
scheduled to be tried on the charges set forth in the
Franklin County indictment, that he had been required to
post a bond to secure his release in Franklin County, and
that a trial on the Franklin County charges would
constitute double jeopardy. The court of appeals
dismissed appellant's petition for failure to state a
claim, finding that habeas corpus was not a proper remedy
to challenge the denial of a motion to dismiss on the
basis of double jeopardy.
     The cause is now before us on an appeal as of right.

     Tyack & Blackmore Co., L.P.A., and Thomas M. Tyack,
for appellant.
     Michael Miller, Franklin County Prosecuting Attorney,
and James V. Canepa, Assistant Prosecuting Attorney, for
appellees.

     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), 

, 

, 

, 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], 

 [

, 

]."
     Owens was subsequently overruled in State v. Thomas
(1980), 

, 

, 

,
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. 

, 

, 

. 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.

, 

, 

. 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], 

 [

, 

], overruled)."
     In 

, 

,
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], 

, 

, 

, 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.

 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.

FOOTNOTE:
1    We are aware of the United States Supreme Court's
decision in Abney v. United States (1977), 

,

, 

, 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. 

, 

, 

. In 

 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.
     A. William Sweeney, J., dissenting.     While I concur in
the well-reasoned and constitutionally sound analysis contained
in the dissenting opinion of Justice Wright, I write separately
to underscore my continued adherence to the rule of law
announced in State v. Thomas (1980), 

, 

, 

, and reiterated in the dissenting
opinion to State v. Crago (1990), 

, 

. In those opinions, it was appropriately observed that
the order of a trial court which denies a motion to dismiss on
the basis of double jeopardy is a "final appealable order"
subject to immediate review.
     In Bell v. Mt. Sinai Hosp. (1993), 

,

, this court defined a final appealable
order for purposes of R.C. 2505.02, as follows:
     "An order which affects a substantial right has been
perceived to be one which, if not immediately appealable, would
foreclose appropriate relief in the future. See, generally,
Union Camp Corp. v. Whitman (1978), 

, 

, 

; State v. Collins
(1970), 

, 

, 

; Morris v. Invest. Life Ins. Co. (1966), 

, 

, 

; In re
Estate of Wyckoff, supra, 166 Ohio St. at 359, 2 O.O.2d at 260,
142 N.E.2d at 664."
     I therefore believe that, as a matter of statutory law, an
order which denies a motion to dismiss on the grounds of double
jeopardy is a final appealable order because as a matter of
constitutional law the protections against multiple
prosecutions could not be vindicated on appeal following a
second trial. Accordingly, the order denying the motion to
dismiss would be "[a]n order *** which, *** if not immediately
appealable, would foreclose appropriate relief in the future."
     Unfortunately, the opportunity to address the statutory
issue was presented when appellant instituted a direct appeal
of the denial of the motion to this court on March 18, 1991.
However, inasmuch as that opportunity was not seized and Crago
continues to preclude such relief, I must reluctantly conclude
that a writ of habeas corpus is an appropriate method of
review. Extraordinary relief should be available because,
under Crago, this court has foreclosed an adequate remedy by
way of direct appeal. See State ex rel. Hastings Mut. Ins. Co.
v. Merillat (1990), 

, 

.
     For the foregoing reasons, therefore, I must respectfully
dissent from the judgment of the majority which affirms the
denial of the writ of habeas corpus.
     Wright, J., dissenting.    I must dissent from the
majority opinion because I believe that the result in paragraph
two of the syllabus is unconstitutional. We are required to
provide a pre-trial means for a defendant to obtain judicial
review of the denial of a motion to dismiss on the ground of
double jeopardy. A post-trial appeal is not constitutionally
adequate because the protection against double jeopardy is not
just protection against being punished twice for the same
offense, it is also protection against being tried twice for
the same offense.
     The United States Supreme Court made this clear in Abney
v. United States (1977), 

, 

, 

. In Abney the court noted:
     "*** [T]he rights conferred on a criminal accused by the
Double Jeopardy Clause would be significantly undermined if
appellate review of double jeopardy claims were postponed until
after conviction and sentence. To be sure, the Double Jeopardy
Clause protects against being twice convicted for the same
crime, and that aspect of the right can be fully vindicated on
an appeal following final judgment, as the Government
suggests. However, this Court has long recognized that the
Double Jeopardy Clause protects an individual against more than
being subjected to double punishments. It is a guarantee
against being twice put to trial for the same offense."
(Emphasis added in part.) 

, 

, 

.
     Because of this dual protection guaranteed by the Double
Jeopardy Clause, the court concluded that:
     "Consequently, if a criminal defendant is to avoid
exposure to double jeopardy and thereby enjoy the full
protection of the Clause, his double jeopardy challenge to the
indictment must be reviewable before that subsequent exposure
occurs." (Emphasis added in part.) 

, 

, 

.
     The Abney court went on to hold that, in a federal
criminal prosecution, the denial of a motion to dismiss based
on double jeopardy constitutes a "final decision" subject to
immediate appellate review under Section 1291, Title 28, U.S.
Code. I agree with the majority that the holding in Abney that
denial of such a motion is a final appealable order under
federal statutory law does not mandate that we rule that the
denial of such a motion is a final appealable order under Ohio
statutory law. (R.C. 2505.02.) In State v. Crago (1990), 

, 

, we held that denial of a
motion to dismiss based on double jeopardy is not a final
appealable order. What Abney does mandate, however, is that,
given our holding in Crago, we must provide some other
pre-trial review mechanism of the denial of a motion to dismiss
on the grounds of double jeopardy. It is absolutely clear from
Abney that a post-trial appeal, which is the sole review
mechanism the majority provides, is constitutionally
insufficient because it provides protection only from twice
being punished for the same offense but does not provide
protection from twice being tried for the same offense. The
Double Jeopardy Clause encompasses a "right not to be tried"
which we are obligated to protect. United States v. MacDonald
(1978), 

, 

, 

.
     In the present case, the appellant seeks pre-trial review
of the denial of his motion to dismiss based on double jeopardy
through an action in habeas corpus. He chose this avenue after
his initial appeal was dismissed based on Crago. The majority
rejects habeas corpus as a proper avenue for two reasons.
First, the majority finds that a post-trial appeal is an
adequate remedy in the ordinary course of law. However, as
discussed above, a post-trial review is constitutionally
inadequate. Second, the majority finds, without explanation,
that "none of the five extraordinary writs seems applicable."
I disagree.
     R.C. 2725.01 provides:
     "Whoever is unlawfully restrained of his liberty, or
entitled to the custody of another, of which custody such
person is unlawfully deprived, may prosecute a writ of habeas
corpus, to inquire into the cause of such imprisonment,
restraint, or deprivation."
     It is not necessary that a person be in actual physical
custody to be restrained of his liberty. He is "restrained of
his liberty" even when he is free on bail or on his own
recognizance pending trial. The terms of bail bonds, even
recognizance bonds, limit the freedom to come and go as one
pleases. A person released on bail or recognizance is in the
constructive custody of the state.
     This conclusion is consistent with the United States
Supreme Court's interpretation of the federal habeas corpus
statutes in Justice of Boston Municipal Court v. Lydon (1984),

, 

, 

. The court
reached this conclusion despite the fact that the federal
statutes contain the more restrictive language "in custody,"
rather than the language in Ohio's statute which refers merely
to "restraint" of liberty.2 The court noted: "Our cases make
clear that 'the use of habeas corpus has not been restricted to
situations in which the applicant is in actual, physical
custody.' Jones v. Cunningham, 

 [

, 

] (1963). In Hensley v. Municipal Court, 

 [

, 

] (1973), we held that a
petitioner enlarged on his own recognizance pending execution
of sentence was in custody within the meaning of 28 U.S.C.
{ {2241(c)(3) and 2254(a)." Justices of Boston Municipal Court,
supra, at 300, 

, 

.
     In light of our constitutional duty to provide a pre-trial
review mechanism of the denial of a motion to dismiss based on
double jeopardy grounds and our holding in Crago, I conclude
that habeas corpus proceedings are the appropriate mechanism
for such a review.3
     For the above resons, I would reverse the judgment of the
court of appeals.
     Pfeifer, J., concurs in the foregoing dissenting opinion.

FOOTNOTES:
     2 Section 2241(c), Title 28, U.S. Code states in part:
     "The writ of habeas corpus shall not extend to a prisoner
unless *** (3) He is in custody in violation of the
Constitution or laws or treaties of the United States ***."
     Section 2254(a), Title 28, U.S. Code states that habeas
corpus is available to persons "in custody pursuant to the
judgment of a State court."
     3 Other jurisdictions which permit double-jeopardy claims
to be raised in habeas corpus proceedings include Colorado,
Kansas and Texas. See Krutka v. Spinuzzi (1963), 

, 

; Kamen v. Gray (1950), 

, 

, certiorari denied (1950), 

, 

, 

; Ex parte Rathmell (Tex. Crim. App. 1986), 

.