[Cite as Smith v. State, 2020-Ohio-556.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


CARLOS MONTEZ SMITH,                         :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Petitioner,                          :       Hon. Craig R. Baldwin, J.
                                             :       Hon. Earle E. Wise, J.
-vs-                                         :
                                             :
STATE OF OHIO,                               :       Case No. 2020 CA 00006
                                             :
        Respondent.                          :       OPINION



CHARACTER OF PROCEEDING:                             Writ of Habeas Corpus




JUDGMENT:                                            Dismissed




DATE OF JUDGMENT:                                    February 18, 2020




APPEARANCES:

For Petitioner                                       For Respondent

CARLOS MONTEZ SMITH,                                 STEPHANIE L. WATSON
#50994                                               Principal Assistant Attorney General
Fairfield County Jail                                Criminal Justice Section
345 Lincoln Ave                                      150 East Gay Street, 16th Floor
Lancaster, Ohio 43130                                Columbus, Ohio 43215-6001
Fairfield County, Case No. 2020 CA 00006                                            2


Baldwin, J.

       {¶1}   On January 16, 2020, Petitioner, Carlos Montez Smith filed a “Motion of

Original Action and Habeas Corpus Relief.” Mr. Smith maintains the Fairfield County

Municipal Court conducted an arraignment on October 28, 2019, and released him on a

recognizance bond. However, on October 29, 2019, a Warrant on Complaint was filed in

the Fairfield County Court of Common Pleas. Mr. Smith contends the complaint was not

filed until 2:11 p.m. on October 29, 2019 and therefore, he was detained without warrant

resulting in a constitutional violation.

       {¶2}   The Ohio Attorney General moved to dismiss Mr. Smith’s writ. The Court

finds the motion well-taken. If a petition does not satisfy the requirements for a properly

filed petition for writ of habeas corpus or does not present a facially viable claim, it may

be dismissed on motion by the respondent or sua sponte by the Court. Flora v. State, 7th

Dist. Belmont No. 04 BE 51, 2005-Ohio-2383, ¶ 5. Mr. Smith’s motion is deficient for a

couple reasons.

       {¶3}   First, Mr. Smith’s “Motion of Original Action and Habeas Corpus Relief”

does not satisfy the requirements for a properly filed writ of habeas corpus because Mr.

Smith filed a “motion” and a motion is not a complaint as required by Civ.R. 3(A). In Martin

v. Wayne Cty. Natl. Bank Trust, 9th Dist. Wayne No. 03CA0079, 2004-Ohio-4194, ¶ ¶ 11-

12, the court explained the difference between a “motion” and a “complaint.” The court

stated:


       Pursuant to Civ.R. 3(A), a party must file a complaint, and obtain service

       within one year from filing the complaint, in order to initiate civil

       proceedings. * * *
Fairfield County, Case No. 2020 CA 00006                                               3


       For the purposes of Civ.R. 3(A), the filing of a motion cannot substitute for

       the filing of a complaint. * * * “Civ.R. 7 distinguishes a pleading from a

       motion. ‘Under Civ.R. 7(A), only complaints, answers and replies

       constitute pleadings.’ ” * * * A complaint is a pleading that need only

       contain a short and plain statement of the claim showing that the party is

       entitled to relief. Civ.R. 8(A)(1). Where as a “motion” is defined as an

       application to the court for an order. Civ.R. 7(B)(1). A motion is not a

       pleading. * * * Thus, in the context of this case, a party cannot initiate an

       action by filing a motion.

(Emphasis sic.)

       {¶4}   See also Pankey v. Mahoning Cty. Court of Common Pleas, 7th Dist.

Mahoning No. 13 MA 27, 2013-Ohio-1617, ¶ 4, where the court of appeals dismissed a

writ of procedendo because relator attempted to commence the original action by filing a

motion. The court explained: “* * * Relator has failed to properly initiate an action in

procedendo. According to Civ.R. 3(A), a party must file a complaint and obtain service

within one year in order to initiate a civil proceeding. Relator attempted to initiate this

action by filing a motion, and a motion is not a complaint.”

       {¶5}   Likewise, here, Mr. Smith commenced his original action for habeas corpus

by filing a motion. The motion does not substitute for the filing of a complaint. Therefore,

Mr. Smith’s motion does not properly invoke the Court’s jurisdiction.

       {¶6}   Second, Mr. Smith’s motion improperly names the State of Ohio as

respondent. R.C. 2725.04(B) requires that an application for a writ of habeas corpus

specify “[t]he officer, or name of the person by whom the prisoner is * * * confined or
Fairfield County, Case No. 2020 CA 00006                                               4


restrained[.]” This Court has previously held that a petition does not comply with R.C.

2725.04(B) where it identifies the State of Ohio as respondent. See State v. Hertel, 5th

Dist. Delaware No. 18 CAA 07 0049, 2018-Ohio-5002, ¶ 32 (“ In addition, the petition

improperly names the State of Ohio as the respondent. R.C. 2725.04(B) requires that an

application for a writ of habeas corpus specify ‘[t]he officer, or name of the person by

whom the prisoner is * * * confined or restrained [.]’ ”); State v. Harpster, 5th Dist. Ashland

No. 12-COA-29, 2012-Ohio-5967, ¶ 5 (“Further, Petitioner has not named a proper

respondent who is alleged to have unlawful custody of Petitioner. Petitioner has named

the State of Ohio rather than a specific person alleged to have custody of Petitioner.”)

       {¶7}   For these reasons, Mr. Smith’s “Motion of Original Action and Habeas

Corpus Relief” is dismissed.

       {¶8}   The clerk of courts is hereby directed to serve upon all parties not in default

notice of this judgment and its date of entry upon the journal. See Civ.R. 58(B).

       {¶9}   MOTION GRANTED.

       {¶10} CAUSE DISMISSED.

       {¶11} COSTS TO PETITIONER.
Fairfield County, Case No. 2020 CA 00006   5


      {¶12} IT IS SO ORDERED.

By: Baldwin, J.

Gwin, P.J. and

Wise, Earle, J. concur.
