By Sharon Coolidge
The Cincinnati Enquirer

Hamilton County cannot reinstate old criminal charges against Larry and Jimmy Flynt, the Ohio 1st District Court of Appeals determined Friday.

Jimmy Flynt, owner of the Hustler store downtown. (Craig Ruttle/file photo)

Prosecutors claim the Flynts, who owned the Hustler store in downtown Cincinnati, violated a deal in 1999 in which prosecutors dropped pandering obscenity charges in return for the Flynts promising not to sell sexually explicit videos in the county.

Prosecutor Mike Allen sought to reinstate the original charges last year after a raid of the store found numerous explicit videos for sale.

"When a case is over, it's over," said Judge Mark Painter. "This case was over in 1999."

Attorney H. Louis Sirkin, who represents the Flynts, has been saying that since the case came up again last year.

"When you're right, you're right," Sirkin said. "We felt we were right and the court agreed - that's very satisfying."

Allen said his office will most likely not appeal the decision. If he determines community standards were violated by the sale of videos seized last year, he could bring the case to a grand jury.

A Hamilton County grand jury indicted Larry and Jimmy Flynt in 1998 on 15 charges, which resulted in a plea agreement in which their corporation, Hustler News, pleaded guilty to two charges of pandering obscenity.

Hamilton County Common Pleas Court Judge Patrick Dinkelacker fined the company $10,000 and dismissed additional charges.

Part of the agreement was that the Flynts would stop selling sexually explicit videos in Hamilton County, and that "if Larry Flynt or Jimmy Flynt or Hustler News and Gifts, Inc. violates any of the terms of the agreement, the entire plea agreement becomes null and void and all charges in the original indictment will be reinstated."

On numerous occasions in January through April 2003, undercover Hamilton County sheriff's deputies purchased sexually explicit videos, prompting Allen to ask Dinkelacker to reinstate the charges because the agreement had been violated.

Dinkelacker scheduled a hearing, but before it happened, the Flynts took the case to the 1st District Court of Appeals saying it was unconstitutional to reinstate the charges.

"Criminal cases cannot be 'conditionally' dismissed," Painter said. "The state seeks some kind of 'super-secret probation' that does not exist in Ohio - or anywhere else that we can find." Judges Ralph Winkler and Lee H. Hildebrant Jr. also sat on the panel.

Sirkin said Jimmy Flynt, who now solely owns the Cincinnati Hustler store on Elm Street, is not violating community standards for obscenity.

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E-mail scoolidge@enquirer.com