2019 Ohio 4365
Ohio Ct. App.2019Background
- In 2004 Florence was convicted of multiple offenses, including a third-degree felony for having weapons while under disability, for which the trial court imposed a three-year prison term.
- His convictions were affirmed on direct appeal (Florence I). Years later he filed a pro se motion claiming the trial court failed to notify him of post-release control (PRC).
- This court (Florence II) and the State agreed the sentencing entry lacked proper PRC notification; the case was remanded for limited resentencing only as to the weapons-under-disability offense because other PRC-bearing sentences were served or inapplicable.
- At the 2018 resentencing the trial court told Florence he “may be placed on a period of three years of post-release control” and entered an amended judgment using the same phrasing.
- Florence appealed; the State conceded the trial court should have used the statutory phrasing “up to three years.” The Second District held the misstatement rendered the PRC portion void and remanded for resentencing limited to properly imposing PRC as “up to three years,” while affirming all other aspects of the sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether stating PRC as “a period of three years” (vs. “up to three years”) invalidates the PRC portion of the sentence | State conceded the trial court misstated the term and agreed remand is required | Florence argued R.C. 2967.28(C) requires advising of a discretionary term “up to three years,” so the court’s misstatement voids PRC | Court held the misstatement rendered the PRC portion void and sustained the assignment of error; remand for resentencing to impose PRC as “up to three years” |
| Proper remedy when a PRC term is void | State agreed resentencing is the proper remedy | Florence sought resentencing to correct the PRC notice/entry | Court held void PRC requires resentencing; directed trial court to advise and incorporate “up to three years” and otherwise left original sentence intact |
Key Cases Cited
- State v. Fischer, 942 N.E.2d 332 (Ohio 2010) (failure to impose required post-release control renders that part of the sentence void)
- State v. Grimes, 85 N.E.3d 700 (Ohio 2017) (trial court must notify offender of PRC at sentencing and include notice in the judgment entry)
- State v. Bezak, 868 N.E.2d 961 (Ohio 2007) (a void judgment is a nullity and parties return to pre-judgment position)
- State v. Jordan, 817 N.E.2d 864 (Ohio 2004) (remedy for void portions of sentence is resentencing)
- State v. Holdcroft, 1 N.E.3d 382 (Ohio 2013) (trial court loses jurisdiction to resentence for PRC after defendant has completed the prison term)