[Cite as State v. Webb, 2012-Ohio-4238.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :      JUDGES:
                                              :
                                              :      Hon. Patricia A. Delaney, P.J.
       Plaintiff-Appellee                     :      Hon. John W. Wise, J.
                                              :      Hon. Julie A. Edwards, J.
-vs-                                          :
                                              :      Case No. 11 CAC 10 0099
JACQUELINE A. WEBB                            :
                                              :
                                              :
       Defendant-Appellant                    :      OPINION


CHARACTER OF PROCEEDING:                          Appeal from the Delaware Municipal Court
                                                  Court, Case No. 11 TRC 7501



JUDGMENT:                                         REVERSED AND REMANDED




DATE OF JUDGMENT ENTRY:                           September 12, 2012




APPEARANCES:

For Appellant:                                       For Appellee:

MICHAEL A. MARROCCO                                  ELIZABETH A. MATUNE
98 N. Union St.                                      Asst. Prosecuting Attorney
Delaware, OH 43015                                   70 N. Union St.
                                                     Delaware, OH 43015



Delaney, P.J.
       {¶1} Defendant-Appellant Jacqueline Webb appeals her October 24, 2011

conviction and sentence for a violation of R.C. 4511.19(A)(1)(h) by the Delaware

Municipal Court. The State of Ohio is the Plaintiff-Appellee.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} Webb was charged in the Delaware Municipal Court with operating a

motor vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a),

operating a motor vehicle with a breath-alcohol concentration of .17 of one gram or

more in violation of R.C. 4511.19(A)(1)(h), a stop sign violation, improper backing, and

aggravated menacing. Webb entered a not guilty plea on July 11, 2011.

       {¶3} Webb filed a motion to suppress all evidence obtained during the

incident, including the initial encounter with the police, the OVI field investigation, and

post-arrest. A hearing was set on the motion for August 26, 2011.

       {¶4} At the suppression hearing, the parties stipulated the officer had

sufficient reasonable suspicion and probable cause to stop Webb and subsequently

arrest Webb. The parties further stipulated the horizontal gaze nystagmus portion of

the field sobriety test was not done in substantial compliance with the NHTSA manual,

but two other field sobriety tests were performed in substantial compliance. The issue

before the trial court was whether the breath test was administered in substantial

compliance with ODH regulations. The parties stipulated to the admission of State

Exhibit 1, a packet of documents relating to the administration of the breath test, for

the trial court to make its determination.

       {¶5} The trial court issued its decision on August 31, 2011. The trial court

found upon its review of State Exhibit 1, the evidence failed to establish the officer
who administered the breath test held an operator’s or senior operator’s permit as

required by Ohio Adm.Code 3701-53-07(C). Accordingly, the State failed to prove the

breath test was administered in substantial compliance with ODH regulations. The

trial court suppressed the result of the breath test.

       {¶6} The state filed a Motion to Reconsider on September 1, 2011. The State

argued that due to an error by the prosecuting attorney, the operator’s permit of the

officer was not included in State Exhibit 1 for the trial court’s consideration. The State

attached the operator’s permit to the motion.

       {¶7} The trial court held an oral hearing on the motion to reconsider.          By

judgment entry issued September 23, 2011, the trial court granted the motion to

reconsider and allowed the evidence of the operator’s permit to be admitted as

evidence.    The trial court found the breath test was administered in substantial

compliance with ODH regulations and denied Webb’s motion to suppress.

       {¶8} At the final pretrial, Webb entered a no contest plea to R.C.

4511.19(A)(1)(h) and criminal damaging.         The trial court found Webb guilty and

sentenced Webb by judgment entry on October 24, 2011.

       {¶9} It is from this decision Webb now appeals.




                              ASSIGNMENTS OF ERROR

       {¶10} Webb raises two Assignments of Error:
      {¶11} “I. THE TRIAL COURT ERRED IN GRANTING THE STATE’S MOTION

FOR RECONSIDERATION AND SUBSEQUENT ADMISSION OF APPELLANT’S

BAC RESULTS.

      {¶12} “II. THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE

APPELLANT’S BAC TEST WHEN THE PROSECUTION FAILED TO PROVE

SUBSTANTIAL COMPLIANCE WITH THE ODH RULES AND REGULATIONS

GOVERNING WEEKLY INSTRUMENT CHECKS OF THE BAC DATAMASTER.”

                                      ANALYSIS

                                            I.


      {¶13} Webb argues in her first Assignment of Error the trial court erred in

considering and granting the State’s motion for reconsideration of the August 31, 2011

judgment entry because the State’s only recourse to challenge the trial court’s ruling

on the motion to suppress was to file a notice of appeal with this Court pursuant to

App.R. 9(B). We agree.

      {¶14} Ohio Rule of Criminal Procedure 12(K) provides for the state to appeal

from a trial court’s ruling on a defendant’s motion to suppress:

      (K) When the state takes an appeal as provided by law from an order

      suppressing or excluding evidence, or from an order directing pretrial

      disclosure of evidence, the prosecuting attorney shall certify that both of

      the following apply:

             (1) the appeal is not taken for the purpose of delay;

             (2) the ruling on the motion or motions has rendered the state's

             proof with respect to the pending charge so weak in its entirety
             that any reasonable possibility of effective prosecution has been

             destroyed, or the pretrial disclosure of evidence ordered by the

             court will have one of the effects enumerated in Crim. R. 16(D).

             The appeal from an order suppressing or excluding evidence shall

      not be allowed unless the notice of appeal and the certification by the

      prosecuting attorney are filed with the clerk of the trial court within seven

      days after the date of the entry of the judgment or order granting the

      motion. Any appeal taken under this rule shall be prosecuted diligently.

             If the defendant previously has not been released, the defendant

      shall, except in capital cases, be released from custody on the

      defendant's own recognizance pending appeal when the prosecuting

      attorney files the notice of appeal and certification.

             This appeal shall take precedence over all other appeals.

             If an appeal from an order suppressing or excluding evidence

      pursuant to this division results in an affirmance of the trial court, the

      state shall be barred from prosecuting the defendant for the same offense

      or offenses except upon a showing of newly discovered evidence that the

      state could not, with reasonable diligence, have discovered before filing

      of the notice of appeal.

      {¶15} In State v. Renkes, 5th Dist. No. 11CAA070067, 2012-Ohio-1931, this

Court recently examined the issue of whether the State was required to appeal a trial

court’s judgment entry granting the defendant’s motion to suppress or whether the

State could instead utilize a motion for clarification to challenge the judgment entry
granting the motion to suppress. Id. at ¶18-25. We analyzed State v. Malinovsky, 60

Ohio St.3d 20, 573 N.E.2d 22 (1991), that held pursuant to the Rules of Criminal

Procedure, when a trial court grants a defendant’s motion to suppress and such ruling

destroys the State’s case, the ruling is a final order. Id. at ¶34-48. The motion to

suppress judgment entry in Renkes suppressed not only the defendant’s statements

but also the derivative physical evidence seized incidental to the search of the

defendant’s residence, thereby effectively destroying the State’s case against the

defendant. Id. at 49. We found the judgment entry granting the defendant’s motion to

suppress was a final appealable order from which the State should have appealed. Id.

The judgment was reversed in part and remanded to the trial court for further

proceedings.

      {¶16} In the case sub judice, Webb was charged with operating a motor vehicle

while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a) and operating

a motor vehicle with a breath-alcohol concentration of .17 of one gram or more in

violation of R.C. 4511.19(A)(1)(h). Webb filed a motion to suppress the results of the

breath test. The trial court’s August 31, 2011 judgment entry granted the motion and

suppressed the results of the breath test. Upon the State’s motion to reconsider, the

trial court denied Webb’s motion to suppress and allowed the results of the breath test

as evidence. Webb then pleaded no contest to a violation of R.C. 4511.19(A)(1)(h).

      {¶17} Pursuant to State v. Renkes, we find the August 31, 2011 judgment entry

granting Webb’s motion to suppress was a final appealable order. In Ohio, a trial

court has no authority to reconsider a valid final judgment in a criminal case. State v.

Brown, 5th District No. 09–CA–137, 2010–Ohio–2757, ¶ 19, citing State v. Moore, 4th
Dist. No. 03CA18, 2004–Ohio–3977. The Ohio Supreme Court has held that a motion

for reconsideration of a final judgment is a nullity. Pitt v. Ohio Dept. of Transp., 67

Ohio St.2d 378 (1981).

       {¶18} Accordingly, we affirm Webb’s first Assignment of Error.

                                            II.

       {¶19} Webb argues in her second Assignment of Error the trial court erred in

admitting the evidence of the results of the breath test.

       {¶20} In light of our analysis and disposition of Webb’s first Assignment of

Error, Webb’s second Assignment of Error is moot.
                                   CONCLUSION

       {¶21} Based on the foregoing, we affirm Webb’s first Assignment of Error.

       {¶22} The judgment of the Delaware Municipal Court is reversed and the

matter is remanded to the trial court for further proceedings consistent with this

opinion and law.

By: Delaney, P.J.

Wise, J. and

Edwards, J. concur.



                                       HON. PATRICIA A. DELANEY



                                       HON. JOHN W. WISE



                                       HON. JULIE A. EDWARDS




PAD:kgb
                   IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                            FIFTH APPELLATE DISTRICT


                                       :
STATE OF OHIO                          :
                                       :
   Plaintiff - Appellee                :      JUDGMENT ENTRY
                                       :
                                       :
-vs-                                   :
                                       :      Case No. 11 CAC 10 0099
JACQUELINE A. WEBB                    :
                                      :
   Defendant - Appellant              :
                                      :


   For the reasons stated in our accompanying Opinion on file, the judgment of the

Delaware Municipal Court reversed and the matter is remanded for further

proceedings consistent with this opinion and law. Costs assessed to Appellee.




                                      HON. PATRICIA A. DELANEY



                                      HON. JOHN W. WISE



                                      HON. JULIE A. EDWARDS
