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July 6, 2006

Wanted to spend the day following up on some stuff from earlier.  Last week I had a post about uncounseled misdemeanor convictions as an enhancement for a felony.  (Three prior DWI's within 6 years make the fourth a felony, for example.)  A reader suggested that the 11th District decision in State v. Brooke is a great case for defense counsel to have, and he's right.  Brooke basically holds that before any uncounseled misdemeanor conviction can be used to enhance a felony offense, the state must show that it meets the requirements of the criminal rules, meaning it has to be recorded.  What's more,

a knowing, intelligent and voluntary waiver of the right to counsel should not be inferred unless the record affirmatively demonstrates that the defendant understood the nature of the charges, the possible defenses and the evidence the state would present.

It's a great case, but a couple of cautionary points.  First, it's not the law in this district; as I pointed out, the 8th District has held that the state does not have to show that a waiver of counsel in the prior conviction was done in compliance with the criminal rules.  Second, Brooke's up on appeal to the Supreme Court, and I think it's going to be reversed.  You can make good arguments for it, but as a practical matter, I don't think the Supreme Court's going to allow felony DWI and domestic violence convictions to hinge on whether the transcript of the municipal court's misdemeanor plea hearing is still available, especially now that the DWI statute has a twenty-year "lookback" provision.

While doing the research on this, though, I found this case out of the 11th District holding that for the waiver in a misdemeanor domestic violence case to be valid, the defendant has to have been advised that a future DV charge would be a felony. That could be helpful.

The other issue I wanted to follow up on was another post from last week, about dismissal for failure to get service upon a defendant.  I'd mentioned that the 8th District's case of Anderson v. Borg-Warner held that a dismissal under Civ.R. 3(A) was a dismissal on the merits, and barred refiling under the savings statute, RC 2305.19.

I don't agree with Anderson's logic, because it creates a possibility of two similar situations giving rise to two completely different outcomes.  Here's how:  say you have two plaintiffs, both of whom have failed to get service on the defendant within the year that Rule 3(A) allows them.  The defendant in the first case filed a motion to dismiss, and the motion is granted.  Under Anderson, the dismissal is with prejudice, and that's the end of the case.

The second defendant also files a motion to dismiss.  But the second plaintiff, without waiting for the court to rule on it, voluntarily dismisses the action.  As soon as that's filed, the court loses jurisdiction to rule on the defendant's motion to dismiss.

What's more, the second plaintiff can then refile under the savings clause.  The savings clause gives you a year to refile if (a) the dismissal was otherwise than upon the merits, which a voluntary dismissal is, and (b) you commenced or attempted to commence the action.  While Anderson correctly holds that an action isn't commenced if you don't get service within a year of filing, you've certainly attempted to commence the action as long as you've filed it and tried to get service.

Thus, the effect of Anderson can be avoided by the simple expedient of voluntarily dismissing the case when the defendant files the motion to dismiss for failure to get service within a year, and then refile.  As I said in the original note, your safest course is to dismiss before the year is up, but if you get stuck, you've got a good argument that voluntary dismissal is a way out.

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