[Cite as State v. Morgan, 2012-Ohio-4750.]

 

IN THE COURT OF APPEALS OF OHIO 

 SECOND APPELLATE DISTRICT 

 CLARK COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

BUSTER R. MORGAN 

Defendant-Appellant 

Appellate Case No. 2012-CA-06 

Trial Court Case Nos. 05-CRB-4039 

Trial Court Case Nos. 05-TRD-8299 

(Criminal Appeal from Clark County 

(Municipal Court) 

. . . . . . . . . . . 

O P I N I O N

Rendered on the 12th day of October , 2012. 

. . . . . . . . . . . 

ELIZABETH H. SMITH, Atty. Reg. #0079180, Clark County Prosecutor’s Office, 50 East 

Columbia Street, 4th Floor, Springfield, Ohio 45502 

Attorney for Plaintiff-Appellee 

BUSTER MORGAN, #627-518, Allen Correctional Institution, 2338 North West Street, 

Lima, Ohio 45801 

Defendant-Appellant, pro se
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. . . . . . . . . . . . . 

 

HALL, J. 

{¶ 1} Buster R. Morgan appeals pro se from the trial court’s dismissal of several 

misdemeanor charges against him. 

{¶ 2} In his sole assignment of error, Morgan contends the trial court erred “by refusing 

to grant an order Discharging the charges in this matter.” The essence of his argument is that the 

trial court should have made its dismissal “with prejudice” due to the statutory speedy-trial time 

expiring and pre-indictment delay in charging him.1

{¶ 3} The present appeal involves charges brought against Morgan in two 2005 Clark 

County Municipal Court cases (case number 05TRD08299 and case number 05CRB04039). The 

charges included, inter alia, traffic violations, identify fraud, resisting arrest, and falsification 

based on events occurring on June 11, 2005. The record reflects that warrants were issued for 

Morgan’s arrest in the two cases on August 11, 2005. (Doc. #6 in case number 05TRD08299; 

Doc. #4 in case number 05CRB04039). The warrants were executed, and Morgan was arrested 

in March 2010. (Id.). The following month, he was transported to the Allen Correctional 

Institution to begin serving a five-year prison sentence for an unrelated hit-skip conviction in 

Logan County. (Doc. #20-B in case number 05TRD08299; Doc. #14-B in case number 

05CRB04039). 

{¶ 4} While in prison, Morgan filed pro se January 20, 2011 motions that he be brought 

 1

Although Morgan’s appellate brief makes an isolated reference to “the Statutory limitations for prosecution,” his argument below 

focused on his statutory speedy-trial right. As discussed infra, Morgan also filed his notice of appeal from the trial court’s denial of a motion 

for reconsideration that addressed only a speedy trial issue. Therefore, we do not perceive his argument on appeal to be that the statute of 

limitations had expired prior to the trial court’s dismissal. Rather, consistent with his argument below and his notice of appeal, we perceive 

his argument to be that the statutory speedy-trial time had expired. 
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to trial in each municipal court case. (Doc. #12-A in case number 05TRD08299; Doc. #7-A in 

case number 05CRB04039). The trial court overruled the motions based on his failure to 

provide the warden’s certification required by R.C. 2941.401, which provides: 

When a person has entered upon a term of imprisonment in a correctional 

institution of this state, and when during the continuance of the term of 

imprisonment there is pending in this state any untried indictment, information, or 

complaint against the prisoner, he shall be brought to trial within one hundred 

eighty days after he causes to be delivered to the prosecuting attorney and the 

appropriate court in which the matter is pending, written notice of the place of his 

imprisonment and a request for a final disposition to be made of the matter * * *. 

The request of the prisoner shall be accompanied by a certificate of the warden or 

superintendent having custody of the prisoner, stating the term of commitment 

under which the prisoner is being held, the time served and remaining to be served 

on the sentence, the amount of good time earned, the time of parole eligibility of 

the prisoner, and any decisions of the adult parole authority relating to the 

prisoner. 

{¶ 5} Morgan renewed his requests for disposition of the two cases, with the required 

certification, on October 24, 2011. (Doc. #19, 20-A, 20-B in case number 05TRD08299; Doc. 

#13, 14-A, 14-B in case number 05CRB04039). The trial court sustained the motions on 

November 7, 2011, appointed counsel for the defendant and scheduled the cases for a pre-trial 

conference on December 12, 2011. 

{¶ 6} In light of Morgan’s imprisonment, and on the State’s motion, the prosecutor and 
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defense counsel subsequently agreed to dismissal of the misdemeanor charges in both cases. 

(Doc. #25, 26 in case number 05TRD08299; Doc. #19, 20 in case number 05CRB04039). The 

trial court originally designated the dismissal as being “without prejudice.” Apparently, the trial 

court crossed out the without-prejudice designation and initialed the change on December 9, 

2011, to reflect a dismissal without any reference to prejudice or a lack thereof, but there is no 

separate file stamp for the amended dispositions. (Doc. #29 in case number 05TRD08299; Doc. 

#23 in case number 05CRB04039). 

{¶ 7} On December 21, 2011, Morgan moved for reconsideration in both cases, urging 

the trial court to enter a dismissal with prejudice. (Doc. #30-A in case number 05TRD08299; 

Doc. #24-A in case number 05CRB04039). On December 22, 2011, the trial court overruled 

both motions. On January 23, 2012, Morgan filed pro se notices of appeal from the trial court’s 

denial of reconsideration. (Doc. #34-A in case number 05TRD08299; Doc. #28-A in case number 

 05CRB04039). As set forth above, Morgan contends on appeal that the trial court should have 

dismissed the charges “with prejudice” due to the speedy-trial time expiring and pre-indictment 

delay. 

{¶ 8} We note that a general dismissal entry, without specifying whether the dismissal 

is “with prejudice” or “without prejudice,” “is considered to be without prejudice.” State v. 

Rodriguez, 2d Dist. Darke No. 1722, 2008-Ohio-3377, ¶ 15. In fact, “since neither Crim.R. 48(A) 

nor Crim.R. 48(B) expressly provides for a dismissal with prejudice, a dismissal or nolle with 

prejudice may be entered only where there is a deprivation of a defendant's constitutional or 

statutory rights, the violation of which would, in and of itself, bar further prosecution.” State v. 

Jones, 2d Dist. Montgomery No. 22521, 2009-Ohio-1957, ¶ 13. When denying Morgan’s motion 
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for reconsideration, the trial court made clear that it intended its dismissal to be without prejudice 

in this case. 

{¶ 9} A criminal defendant typically cannot appeal the dismissal of charges against him 

without prejudice. City of Hudson v. Harger, 9th Dist. Summit No. CA 26208, 2012-Ohio-2604, 

¶ 3-8. This is so because the defendant is placed in the same position he was in prior to the State 

filing the charges.2 Id. at ¶ 8. Morgan argues that his case is different, however, because he has a 

right to be placed in a better position than if no charges had been filed. Due to an alleged 

speedy-trial violation and excessive pre-indictment delay, Morgan reasons that the State should 

not be allowed to charge him again. But see State v. Dickerson, 4th Dist. Athens No. 1277, 1986 

WL 8797 (Aug. 13, 1986) (agreeing that “the proper time to address a defendant’s arguments that 

a court has erred by failing to dismiss a case with prejudice would be when the state might begin 

further prosecution”). 

{¶ 10} Even if we assume, arguendo, that Morgan can appeal the trial court’s dismissal 

entry, his appeal is untimely. The trial court filed its original disposition on November 29, 2011, 

and although we don’t believe it had the authority to change the disposition on December 9, 

2011, that is the apparent date the change was made. If the dismissal entry was an appealable 

order, then the trial court’s subsequent December 22, 2011 entry overruling Morgan’s motion for 

reconsideration was a nullity. No authority exists for seeking reconsideration at the trial-court 

level of a final judgment in a criminal case. See, e.g., State v. Harris, 11th Dist. Lake No. 

 2

A different rule applies when the State seeks to appeal the dismissal of criminal charges. A statute, R.C. 2945.67(A), “clearly

affords the state the right to appeal, as a matter of right, any decision that grants a motion to dismiss, without requiring that the dismissal be 

with prejudice.” (Emphasis sic.) State v. Craig, 116 Ohio St.3d 135, 2007-Ohio-5752, 876 N.E.2d 957, ¶ 13. No statute grants a criminal 

defendant the same right. 
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2011-L-127, 2011-Ohio-5600, ¶ 11. The appealable order, if any, was the trial court’s November 

29, 2011 original disposition or, giving the defendant the benefit of all doubt, from the court’s 

December 9, 2011 amended disposition. Morgan did not file his notice of appeal within thirty 

days of either date, as required by App.R. 4(A). He also did not file a motion for a delayed appeal 

pursuant to App.R. 5(A). 

{¶ 11} Finally, if we were to consider them, Morgan’s arguments are unpersuasive on 

their merits. The record does not reflect that the speedy-trial time expired prior to the trial court’s 

dismissal of the charges. Morgan was arrested on the outstanding warrants on March 17, 2010. 

He filed the notice and certification required by R.C. 2941.401 on October 24, 2011, thereby 

triggering the 180-day statutory speedy-trial time. The trial court dismissed the charges against 

him in December 2011, long before that time expired. 

{¶ 12} With regard to pre-indictment delay, Morgan argues: “[B]eing that these charges 

stemmed from an alleged offense date of June 2005, and no indictment or warrant for this 

defendant surfaced until March 2010, there was a fifty-seven (57) month delay between the 

alleged commission of this offense, and the indictment therefore.” 

{¶ 13} Morgan’s argument is factually inaccurate. The charging instruments in the 

proceedings below were traffic citations and a criminal complaint, not an indictment as he 

alleges. Nevertheless, the charges were filed on August 11, 2005, and involved events occurring 

on June 11, 2005. As set forth above, warrants also were issued for Morgan’s arrest in both cases 

on August 11, 2005. After the dismissals, in his January 12, 2012 Motions for Discharge (Doc. 

#32-A in case number 05TRD08299; Doc. #26-A in case number 05CRB04039), Morgan 

asserted that he was picked up and released by authorities five times in the 55 months between 
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“indictment” and arrest. But he does not present any evidence of where he was detained, or under 

what circumstances, or that he ever attempted to appear in Clark County or the court. Thus, there 

is no evidence that he was anything other than a fugitive during the interim. Therefore, there was 

no demonstration of delay that would be charged against the State of Ohio before the cases were 

dismissed. 

{¶ 14} Based on the reasoning set forth above, we overrule Morgan’s assignment of 

error and affirm the judgment of the Clark County Municipal Court. 

 . . . . . . . . . . . . . 

FROELICH, J., concurs. 

GRADY, P.J., concurring: 

{¶ 15} The statutory speedy-trial requirements are set out in R.C. 2945.71. Paragraph 

(F) of that section states: 

This section shall not be construed to modify in any way section 2941.401 or 

sections 2963.30 to 2963.35 of the Revised Code. 

Therefore, R.C. 2941.401, and not R.C. 2945.71, governs the speedy-trial rights of persons 

serving a term of imprisonment in this state with respect to offenses with which they have been 

charged in an untried indictment or complaint. State v. Pesci, 11th Dist. Lake No. 201-L-026, 

2002-Ohio-7131, ¶ 43. 

{¶ 16} Defendant-Appellant Morgan filed his R.C. 2941.401 request to be brought to 

trial on the two 2005 misdemeanor charges on October 24, 2011. The State was required to 

bring Morgan to trial within 180 days thereafter, on or before April 22, 2012. The charges were 

dismissed by the court on November 29, 2011. That dismissal extinguished Defendant’s right to 
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be brought to trial on those charges. He cannot complain his right to a speedy trial was violated. 

{¶ 17} The two charges against Morgan are misdemeanor charges. A prosecution on 

misdemeanor charges is barred unless it is commenced within two years after the offense was 

committed. R.C. 2901.13(A)(1)(b). Therefore, Morgan’s prosecution on the 2005 

misdemeanor charges is now barred, unless any of the extension provisions in R.C. 2901.13 

apply. 

Copies mailed to: 

Elizabeth H. Smith 

Buster R. Morgan 

Hon. Thomas E. Trempe