State ex rel. Viceroy v. Strickland-Saffold
2011 Ohio 3077
Ohio Ct. App.2011Background
- Viceroy was convicted in CR-315048 for felonious assault with a firearm specification; sentence included three years on the firearm spec and a concurrent or consecutive term of three to fifteen years on felonious assault; appellate court affirmed.
- In 2010, Viceroy filed a procedendo action in this court seeking a final, appealable sentencing order; this court granted the writ and directed a final order complying with Crim.R. 32(C) and Baker.
- Respondent issued a resentencing entry (Dec. 7, 2010) stating guilty on felonious assault with firearm spec, dismissing the violence spec, and sentencing as specified; Viceroy did not appeal the entry.
- Viceroy contends the resentencing entry is not a final appealable order and seeks this court to compel a final order.
- This court granted respondent’s summary judgment and denied Viceroy’s cross-motion; writ denied; costs assessed to relator.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether relator has a clear right to procedendo for a final order | Viceroy asserts no final order issued yet. | Respondent argues final order rights were extinguished by appeal or alternative remedies. | Relator lacks clear right; adequate remedy by appeal exists. |
| Whether the resentencing entry complies with Crim.R. 32(C) and Baker | Viceroy asserts noncompliance with mandated elements for a final entry. | Respondent argues the entry complies with required elements. | The resentencing entry complies with Crim.R. 32(C) and Baker. |
| Whether the resentencing entry is a final appealable order | Viceroy contends it is not final or appealable. | Respondent contends it is a final appealable order under prior directives. | The resentencing entry is a final appealable order. |
| Whether relator had an adequate remedy by appeal | Viceroy’s remedy lies in direct appeal, not procedendo. | Respondent maintains appeal was available and proper. | Relator had an adequate remedy by appeal. |
Key Cases Cited
- State ex rel. Charvat v. Frye, 114 Ohio St.3d 76 (2007-Ohio-2882) (establishes procedural standards for writs of procedendo)
- State ex rel. Wright v. Cuyahoga Cty. Court of Common Pleas, 2011-Ohio-2159 (Ohio App. 8th Dist. 2011) (relates to appellate jurisdiction and procedendo relief)
- State v. Baker, 119 Ohio St.3d 197 (2008-Ohio-3330) (requirements for sentencing journal entries under Crim.R. 32(C))
- State ex rel. Viceroy v. Strickland Saffold, 2011-Ohio-5563 (Ohio App. 8th Dist. 2011) (procedural directive to issue a proper final sentencing entry)