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Akron v. Meissner12/22/1993
BAIRD, Judge.
This cause comes before the court upon the appeal of Sonya Meissner from a decision in the Municipal Court of Akron finding her guilty of failing to control her dog, in violation of Akron City Code ("A.C.C.") 92.25(B)(1) and 92.25(B)(4). The court sentenced the appellant to fines, court costs, and a jail sentence, and her dog was ordered to be destroyed. It suspended part of the fines and all the jail time. The dog's destruction is stayed pending this appeal. We reverse.
On November 15, 1992, Officer Donald Miller issued to the appellant an unsworn complaint and summons charging her with one count of permitting her dog to be at large (A.C.C. 92.25 ) and one count of permitting her dog to bite (A.C.C. 92.25 ). The next day, Officer Miller filed a sworn complaint charging the appellant with violating A.C.C. 92.25(B)(4) only.
The trial court tried the appellant on both counts. The prosecution produced evidence that the appellant's dog was at large and did bite another dog, while the appellant offered no evidence. The trial court entered a guilty verdict on both counts, from which the appellant appeals, asserting two assignments of error. Because the second assignment of error is procedural and the first substantive, this court treats them in reverse order.
Assignment of Error II
"The City of Akron failed to properly execute the complaint in violation of Criminal Rule 3. The complaint is void and any conviction resulting therefrom is void. Thus, Defendant was denied due process of law under the Fourteenth Amendment to the United States Constitution and Article 1, Section 10 of the Ohio Constitution."
Crim.R. 3 requires, in part, that a complaint be "made upon oath." Normally, under Crim.R. 4(A)(1), a summons will issue from the sworn complaint, in that order. Crim.R. 4(A)(3), however, provides that " n misdemeanor cases where a law enforcement officer is empowered to arrest without a warrant, he may issue a summons * * *. The officer issuing such summons shall file * * * a complaint describing the offense." In addition, for minor misdemeanors, Crim.R. 4.1 allows another choice of procedure. An officer complying with that rule may issue a copy of a citation to the accused and then, without unnecessary delay, file a sworn original with the court.
In this case, the officer issued to the appellant an unsworn copy of a "citation and summons" charging her with both A.C.C. 92.25(B)(1), which is a minor misdemeanor, and A.C.C. 92.25(B)(4), which is a first degree misdemeanor. He never filed a sworn original. Instead, he filed a sworn complaint charging the first degree misdemeanor only.
The city never properly charged the appellant with a violation of A.C.C. 92.25(B)(1). Therefore, the court never acquired jurisdiction over that issue. "In the absence of a sufficient formal accusation, a court acquires no jurisdiction whatever, and if it assumes jurisdiction, a trial and conviction are a nullity." State v. Miller (1988), 47 Ohio App.3d 113, 114, 547 N.E.2d 399, 400. See, also, Stewart v. State (1932), 41 Ohio App. 351, 353-354, 181 N.E. 111, 111-112. In State v. Green (1988), 48 Ohio App.3d 121, 548 N.E.2d 334, the charging officer signed the complaint, but did not sign the jurat. The court held that an unsworn complaint "is void and any conviction resulting therefrom would be void also." Id. at 122, 548 N.E.2d at 335.
Since the charging officer did not file a sworn original charging the appellant with the dog-at-large violation, in accordance with Crim.R. 4.1, that conviction is void. Only the dog bite charge remains. That charge falls within the process outlined
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