Is a Conviction Void for Lack of Jurisdiction If Indictment Is Not Sufficient to Charge An Offence ?
In State v. Conley, 5th Dist. No. 03-CA-18, 2005 Ohio 3257, the indictment charging the defendant with child endangering did not include recklessness.
The court held that the indictment was not sufficient to charge an offense; hence, the conviction was void for lack of jurisdiction. Id. at P21.
In reaching this result, the Conley court relied on the decision of State v. Cimpritz (1953), 158 Ohio St. 490, 493, 110 N.E.2d 416, which held that "if any material element or ingredient of the offense, as defined by the statute, is omitted from an indictment, such omission is fatal to the validity of the indictment."
Furthermore, if defective, then the conviction is void for lack of subject matter jurisdiction.
The inherent flaw with the Conley decision is that its reliance on Cimpritz is misplaced given the subsequent Supreme Court of Ohio decision of Midling v. Perrini (1968), 14 Ohio St.2d 106, 107, 236 N.E.2d 557, which held that the failure to object to a defective indictment is not jurisdictional.
The Second District, in State v. Cochran (Dec. 29, 1995), 2nd Dist. No. 94-CA-80, 1995 Ohio App. has recognized this distinction. See, also, State v. Castile, 6th Dist. No. E-02-012, 2005 Ohio 133, at P67.