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not so in Mass.,,,, (Ohio) Police officer may initiate a complaint in the name of a third party.

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  • Don S.
    The prime reason for the dismissal, he said, was the person who observed it was an on-duty police officer, which the court does not count as a member of the
    Message 1 of 2 , Jun 1, 2010
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      "The prime reason for the dismissal, he said, was the person who observed it was an on-duty police officer, which the court does not count as a member of the public."


      The constitutional argument here is that police do not exercise rights
      while in the official performance of their duties.




      ====================================

      This is a bizarre court ruling.

      In Massachusetts, a complaint requires a citizen.

      Massachusetts Officer accused of lewd acts back on duty; on duty police not member of public.

      By ROB MARGETTA, Standard-Times staff writer   Fall River courthouse.
      The Standard-Times New Bedford, Mass.  January 19, 2006.

      Contact Rob Margetta at rmargetta@...

      This story appeared on Page A11 of The Standard-Times on January 19, 2006.

      A Fall River police lieutenant, suspended in September 2005 after state police charged him with committing lewd acts while off-duty in a Swansea rest area, is back on active duty, according to department officials.

      Lt. Eduardo Raposo, 47, of Swansea, returned to full duty Jan. 3, 2006 according to police. He had been on paid suspension since his arrest. The release said Lt. Raposo was brought back to full duty after Judge John M. Julian dismissed a felony charge of open and gross lewdness against him Dec. 22, 2005.

      Bristol County District Attorney Paul F. Walsh Jr. said he believes the dismissal came as a result of Judge Julian's "very technical reading of the statute."

      A state trooper's incident report said that, at about 12:35 p.m. on Sept. 4, 2005, he saw Lt. Raposo masturbating in the woods near a westbound rest area while two other men watched.
      One of the men was released, although police sent him a citation for a parking violation via mail. The other escaped.

      Mr. Walsh said prosecutors had to prove the nature of the lewd conduct, that it occurred in a public, open place and that it "shocked and alarmed" the public.

      "The nature of the conduct was well-proved," Mr. Walsh said.
      He said some of the testimony in the case disputed whether or not the incident took place in an "open" area. "I personally think that area's open, though," Mr. Walsh said.

      The prime reason for the dismissal, he said, was the person who observed it was an on-duty police officer, which the court does not count as a member of the public.

      "Therefore, there was no shock or alarm to the public," he said.
      Mr. Walsh said whether Lt. Raposo is still fit to serve is "a decision for the police chief."
      Fall River Chief John M. Souza did not comment on the matter. However, spokesman Lt. Wayne Furtado said that Lt. Raposo's status with the department depends on the outcome of a pending misdemeanor charge in District Court of indecent exposure and the results of an internal investigation and an independent review.
      The internal investigation is almost complete, according to the Office of Professional Standards. The investigation's results will not be released until a ruling comes on the misdemeanor charge against Lt. Raposo.
      "It's probably been one of the most thorough investigations I've ever seen," Lt. Furtado said.
      Lt. Furtado said Lt. Raposo works the night shift as a commander of its B watch.

      =========================================================








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      At 11:28 AM 5/29/10 +0000, you wrote:
       

      SEARCH: Ohio traffic rule 8

      STATE OF OHIO, Plaintiff-Appellee -vs- JEANNE E. COLLINS, Defendant-Appellant

      Case No. 2000CA00013

      COURT OF APPEALS OF OHIO, FIFTH APPELLATE DISTRICT, STARK COUNTY

      2000 Ohio App. LEXIS 4987

      October 16, 2000, Date of Judgment Entry

      PRIOR HISTORY: [*1] CHARACTER OF PROCEEDING: Criminal Appeal from Canton Municipal Court. Case 99 TRD 14040.

      DISPOSITION: Affirmed.

      CASE SUMMARY

      PROCEDURAL POSTURE: Appellant challenged her conviction and sentence from the Canton Municipal Court (Ohio) on one count of speeding, in violation of Ohio Rev. Code Ann. § 4511.21.

      OVERVIEW: Appellant claimed that, because her speeding ticket consisted of a complaint signed by the police officer, and not an attorney, Ohio Rev. Code Ann. § 4705.01 which allowed only a licensed attorney or party to sign a pleading commencing a legal action, was violated and her conviction should have been reversed. Disagreeing, the court ruled that as § 4705.01 was a general provision, it was superseded by the specific provisions of Ohio Traf. R. 3, promulgated by the Ohio supreme court under Ohio Rev. Code Ann. § 2935.17. The officer followed the procedures of Rule 3 to initiate the traffic complaint: he prepared a complaint setting out the charges and penalties, signed it under penalty of perjury, and served it on the driver. This procedure gave the municipal court jurisdiction, and provided the appellant with due process by giving her adequate notice.

      OUTCOME: Judgment affirmed, because traffic laws did not require traffic complaint to be signed by an attorney; complaint prepared under the uniform traffic laws and signed by police officer was sufficient.

      CORE TERMS: assignments of error, traffic, traffic ticket, police officer, prosecutor, Traffic Rules, Ohio Traffic Rules, enter a plea, ticket, practice law, common pleas, reasonable attempt, indictment, sentence, speeding, commence, licensed, inferior, Criminal Rules, law enforcement officer, motor vehicle, general proposition, special provision, prescribed, contest, issuing, notice, seeing

      LexisNexis® Headnotes Hide Headnotes

      Criminal Law & Procedure > Accusatory Instruments > General Overview
      Legal Ethics > Unauthorized Practice of Law
      HN1Go to the description of this Headnote.Pursuant to Ohio Rev. Code Ann. § 4705.01, only a licensed attorney or a party to an action may commence an action by subscribing his or her own name.

      Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > General Overview
      Transportation Law > Private Vehicles > Traffic Regulation > General Overview
      HN2Go to the description of this Headnote.See Ohio Rev. Code Ann. § 2935.17.

      Transportation Law > Private Vehicles > Traffic Regulation > General Overview
      HN3Go to the description of this Headnote.See Ohio Traf. R. 1(B).

      Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > General Overview
      Transportation Law > Private Vehicles > Traffic Regulation > General Overview
      HN4Go to the description of this Headnote.If no procedure is specifically prescribed by the Ohio Traffic Rules, the Rules of Criminal Procedure and the applicable law apply. Ohio Traf. R. 20.

      Criminal Law & Procedure > Accusatory Instruments > Citations
      Transportation Law > Private Vehicles > Traffic Regulation > General Overview
      HN5Go to the description of this Headnote.The Ohio Traffic Rules state that a citation for a traffic violation shall be issued and signed by the law enforcement officer involved. Ohio Traf. R. 3. The Traffic Rules do not require that a party or an attorney or counselor at law sign the ticket which commences the action.

      Governments > Legislation > Interpretation
      Governments > Legislation > Types of Statutes
      HN6Go to the description of this Headnote.When a conflict exists between two statutes that address the same subject matter, one a general proposition, and the other special, the special provision prevails as an exception to the general statute. Ohio Rev. Code Ann. § 1.51.

      Governments > Legislation > Interpretation
      Transportation Law > Private Vehicles > Traffic Regulation > General Overview
      HN7Go to the description of this Headnote.The legislature gave the Ohio supreme court the responsibility to establish the procedure by which a traffic complaint shall be initiated. Ohio Rev. Code Ann. § 2935.17. This statute, and the rules thereby promulgated by the Supreme Court, are special, specific provisions. On the other hand, Ohio Rev. Code Ann. § 4705.01, allowing only a licensed attorney or party to commence an action by subscribing her own name, is a general proposition. The special provisions of the Traffic Rules supercede § 4705.01.

      Criminal Law & Procedure > Accusatory Instruments > General Overview
      Transportation Law > Private Vehicles > Traffic Regulation > General Overview
      HN8Go to the description of this Headnote.Pursuant to Ohio Traf. R. 3(E), the traffic ticket is required to be completed and signed by a law enforcement officer, served on the defendant, and filed with the court. Thus in a traffic case, there is no requirement that the prosecutor or attorney endorse the citation, or that an affidavit be filed.

      Criminal Law & Procedure > Accusatory Instruments > General Overview
      Transportation Law > Private Vehicles > Traffic Regulation > General Overview
      HN9Go to the description of this Headnote.Ohio Traf. R. 3 provides that the complaint and summons in traffic cases shall be the Ohio Uniform Traffic Ticket. The prosecutor is not required to sign the Ohio Uniform Traffic Ticket or present a formal complaint based on that ticket. The police officer issuing the ticket must fill in the ticket with information that he or she sets forth under the penalties of perjury and falsification to be true. The need for a formal complaint, information, or indictment, is disposed with.

      Criminal Law & Procedure > Accusatory Instruments > Indictments > Contents > Requirements
      Criminal Law & Procedure > Accusatory Instruments > Informations > Contents > Requirements
      Criminal Law & Procedure > Preliminary Proceedings > Entry of Pleas > Types > General Overview
      HN10Go to the description of this Headnote.Since the Ohio Criminal Rules only apply to a traffic case only when there is no procedure provided in the Ohio Traffic Rules, and the Ohio Traffic Rules require only the use of the Ohio Uniform Traffic Ticket to initiate the action, an accused may be required to enter a plea without seeing an indictment, information or complaint signed by a prosecutor.

      Criminal Law & Procedure > Accusatory Instruments > General Overview
      Criminal Law & Procedure > Preliminary Proceedings > Arraignments > Procedure & Scope
      Governments > Courts > Justice Courts
      HN11Go to the description of this Headnote.When a proper uniform traffic ticket is filed charging defendant with the offenses alleged, the municipal court has jurisdiction.

      Criminal Law & Procedure > Accusatory Instruments > General Overview
      Transportation Law > Private Vehicles > Traffic Regulation > General Overview
      HN12Go to the description of this Headnote.The trial court in a traffic case need not follow all of the formal requirements as required under the criminal rules. A complaint prepared pursuant to Ohio Traf. R. 3 simply needs to advise the defendant of the offense with which he is charged, in a manner that can be readily understood by a person making a reasonable attempt to understand.

      COUNSEL: For Plaintiff-Appellee: EUGENE O'BYRNE, Asst. City Prosecutor, Canton, Ohio.

      For Defendant-Appellant: JEANNE E. COLLINS, Hartville, OH.

      JUDGES: Hon. Sheila Farmer, P.J., Hon. John Wise, J., Hon. Julie Edwards, J., By Edwards, J., Farmer, P.J. and Wise, J., concurs.

      OPINION BY: Julie Edwards

      OPINION

      Edwards, J.

      Defendant-appellant Jeanne E. Collins appeals her conviction and sentence from the Canton Municipal Court on one count of speeding, in violation of R.C. 4511.21. Appellee is the State of Ohio.

      STATEMENT OF THE FACTS AND CASE

      On December 19, 1999, appellant was charged with speeding, in violation of R.C. 4511.21. An Ohio uniform traffic ticket was prepared by the Uniontown police officer and issued to appellant. On December 30, 1999, appellant appeared in the Canton Municipal Court before a Magistrate. The Magistrate informed appellant of the charge. When asked how she wished to plead to this offense, appellant responded "I would like to plead no contest, Your Honor, in order to challenge the process in the matter." Appellant [*2] then explained that she was asking the court to "take judicial notice of O. R. C. Section 2935.09, in that in order to commence an action that must be brought in the name of the State of Ohio and signed by a prosecutor. I believe, Your Honor, there is no complaint in my file signed by a prosecutor." The Magistrate overruled the motion and accepted the no contest plea. The Magistrate found appellant guilty and imposed a fine of $ 50.00 and costs and assessed two points to appellant's driver's license. In so doing, the court noted that this was appellant's third moving violation that year. A Judgment Entry reflecting the sentence of the court was filed on December 30, 1999. It is from her conviction and sentence that appellant prosecutes this appeal, raising the following assignments of error:

      ASSIGNMENT OF ERROR I

      CAN A POLICE OFFICER BRING A PLEADING IN THE NAME OF A THIRD PARTY, I.E. STATE OF OHIO, WHEN HE IS NOT LICENSED TO PRACTICE LAW AND WHEN HE IS NOT AUTHORIZED TO BRING A PLEADING IN THE NAME OF THE STATE OF OHIO.

      ASSIGNMENT OF ERROR II

      DOES A COURT HAVE SUBJECT MATTER JURISDICTION TO FORCE THE ACCUSED TO ENTER A PLEA, OR ENTER A PLEA FOR YOU, WHEN [*3] NO FORMAL PLEADING HAS BEEN ENTERED INTO A CASE BY A PROSECUTOR FOR THE STATE.

      ASSIGNMENT OF ERROR III

      CAN THE COURT FIND ON THE FACTS IN THE MATTER WHEN IT LACKS SUBJECT MATTER JURISDICTION.

      I

      In the first assignment of error, appellant argues R. C. 4705.01 is violated when a trial court allows an action to be commenced based solely on a traffic ticket signed by a police officer when the police officer is not licensed to practice law. HN1Go to this Headnote in the case.Pursuant to R.C. 4705.01, only a licensed attorney or a party to an action may commence an action by subscribing his or her own HN2Go to this Headnote in the case.name. R.C. 2935.17, effective November 1, 1977, states in part: "Provided, that the supreme court of Ohio, may, by rule, provide for the uniform type and language to be used in any * * * complaint to be filed in any court inferior to the court of common pleas for violations of the motor vehicle and traffic acts * * *, and may require that such forms and no other, shall be received in such courts, and issued to violators." (Emphasis added.) The Ohio Supreme Court implemented R.C. 2935.17 initially by promulgating the Ohio [*4] Rules of Practice and Procedure in Traffic Cases for All Courts Inferior To Common Pleas and later by issuing superseding Ohio Traffic Rules that were in effect at the time the instant case arose. HN3Go to this Headnote in the case.The Ohio Traffic Rules are to be "construed and applied to secure the fair, impartial, speedy, and assured administration of justice, simplicity and uniformity in procedure, and the elimination of unjustifiable expense and delay." Traf. R. 1(B). HN4Go to this Headnote in the case.If no procedure is specifically prescribed by the Ohio Traffic Rules, the Rules of Criminal Procedure and the applicable law apply. Traf. R. 20. HN5Go to this Headnote in the case.The Traffic Rules state that a citation for a traffic violation shall be issued and signed by the law enforcement officer involved. Traf. R. 3. The Traffic Rules do not require that a party or an attorney or counselor at law sign the ticket which commences the action. We acknowledge that this may, at first blush, appear to be in conflict with R.C. 4705.01's requirement that actions or proceedings be commenced by a party or a person admitted to practice law. However, HN6Go to this Headnote in the case.when a conflict exists between two statutes that address the same subject matter, one a general proposition, and the [*5] other special, the special provision prevails as an exception to the general statute. R.C. 1.51; State v. Conyers (1999), 87 Ohio St. 3d 246, 719 N.E.2d 535. HN7Go to this Headnote in the case.The Legislature gave the Supreme Court the responsibility to establish the procedure by which a traffic complaint shall be initiated. R.C. 2935.17. We find that statute, R.C. 2935.17 and the rules thereby promulgated by the Supreme Court, to be special, specific provisions. On the other hand, R.C. 4705.01 is a general proposition. The special provisions of the Traffic Rules supercede R.C. 4705.01. Therefore, the action may be commenced upon the signature of a police officer. This decision is in accord with our previous decision on this issue. In Village of Millersburg v. Poulson, 1992 Ohio App. LEXIS 6159 (Nov. 23, 1992), Holmes App. CA-457, unreported, 1992 WL 362572, we held that a traffic case, commenced by a police officer, was not commenced in violation of R.C. 4705.01: HN8Go to this Headnote in the case."Pursuant to Traffic Rule 3(E), the traffic ticket is required to be completed and signed by a law enforcement [*6] officer, served on the defendant, and filed with the court. Thus in a traffic case, there is no requirement that the prosecutor [or attorney] endorse the citation, or that an affidavit be filed.

      Therefore, in accordance with R.C. 1.51 and Village of Millersburg, we find that an officer is not in violation of R.C. 4705.01 when his citation is used as the formal complaint initiating an action in traffic court. Appellant's first assignment of error is overruled.

      II

      In the second assignment of error, appellant argues that she was required to enter a plea without seeing a formal complaint, information, or indictment in violation of Crim. R. 10. Appellant argues that the trial court had no jurisdiction "to force the accused to plea" when the complaint that was filed was a traffic ticket signed by a police officer and not a formal complaint "entered . . . by a prosecutor for the State." We disagree. As discussed above, R. C. 2935.17 gives the Supreme Court of Ohio the authority to provide by rule for the uniform type and language to be used in any affidavit or complaint filed in any court inferior to the Common [*7] Pleas Court for violations of motor vehicle and traffic laws. Pursuant to that authority, the Supreme Court adopted HN9Go to this Headnote in the case.Traf. R. 3 which provides that the complaint and summons in traffic cases shall be the Ohio Uniform Traffic Ticket. The prosecutor is not required to sign the Ohio Uniform Traffic Ticket or present a formal complaint based on that ticket. The police officer issuing the ticket must fill in the ticket with information that he or she sets forth under the penalties of perjury and falsification to be true. As we found in Village of Millersburg, supra, the need for a formal complaint, information, or indictment, was disposed with. Therefore, HN10Go to this Headnote in the case.since the Criminal Rules only apply when there is no procedure provided in the Traffic Rules and the Traffic Rules require only the use of the Ohio Uniform Traffic Ticket to initiate the action, the trial court did not error in requiring that she enter a plea without appellant seeing an indictment, information or complaint signed by a prosecutor. Appellant's second assignment of error is overruled.

      III

      In the third assignment of error, appellant argues that the trial court erred in finding appellant guilty of speeding when the trial court [*8] did not have jurisdiction over the case. HN11Go to this Headnote in the case.As a proper uniform traffic ticket was filed charging appellant with the offenses alleged, the Canton Municipal Court had jurisdiction. See State v. Maurer, 1991 Ohio App. LEXIS 5489 (Nov. 12, 1991), Stark App. CA-8577, unreported, 1991 WL 249451. Although not raised as an assignment of error, appellant, argues in her merit brief that the process used at the Canton Municipal Court for arraignments is in violation of constitutional protections of both substantive and procedural due process because it failed to inform the accused of the nature and cause of action pending against her. The Traffic Rules specifically state that the Criminal Rules will apply only when no procedure is specifically prescribed by the Ohio Traffic Rules. HN12Go to this Headnote in the case.Therefore, trial court need not follow all of the formal requirements as required under the criminal rules. As this court found in State v. Maurer, "[a] complaint prepared pursuant to Traf. R. 3 simply needs to advise the defendant of the offense with which he is charged, in a manner that can be readily understood by a person making a reasonable attempt to understand." State v. Maurer, supra (citing Cleveland v. Austin (1978), 55 Ohio App. 2d 215, 219, 380 N.E.2d 1357). [*9] The Ohio Uniform Traffic Ticket set forth the charge in a manner that could be readily understood by a person making a reasonable attempt to understand. Further, the trial court advised the defendant of the offense with which she was charged in a manner that could be readily understood by a person making a reasonable attempt to understand. The trial court did not violate any of appellant's rights as guaranteed by the Ohio and United States Constitution. State v. Maurer, supra. Appellant had sufficient notice of the nature of the charge against her.

      For the reasons stated above, appellant's third assignment of error is overruled. The Judgment of the Canton Municipal Court is affirmed.

      By Edwards, J. Farmer, P.J. and Wise, J. concurs



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