{¶ 3} Appellant then appealed, arguing, in part, that the trial court had erred in giving a lesser-included-offense instruction on felonious assault because felonious assault is not a lesser included offense of attempt to commit murder. Pursuant to an opinion filed in State v.Nelson (1996),
{¶ 4} Thereafter, on May 26, 1998, the Tuscarawas County Grand Jury indicted appellant on two counts of felonious assault in violation of 2903.11, both aggravated felonies of the second degree. Appellant, on June 22, 1998, filed a "Motion to Dismiss for Due Process, Lack of Speedy Trial and Double Jeopardy." Appellant, in his motion, *3 specifically requested that "the charges contained herein be dismissed for the reason that they are based upon alleged conduct for which he has been previously tried and eventually released." Appellant also argued that "the return of a new indictment for these charges three years after the incident violates defendant's double jeopardy, right to a speedy trial and right to due process." The trial court, pursuant to a Judgment Entry filed on July 22, 1998, overruled appellant's motion to dismiss the indictment.
{¶ 5} On January 11, 1999, appellant entered a plea of no contest to one count of felonious assault in violation of R.C. Section
{¶ 6} Appellant then appealed, arguing, in part, that the trial court had erred in failing to dismiss the indictment since appellant had not been brought to trial within the time limits established by Ohio Revised Code Section
{¶ 7} On remand, the trial court found that appellant's speedy trial rights had not been violated. As memorialized in a Judgment Entry filed on January 26, 2001, the trial court sentenced appellant to an indefinite prison sentence of five to fifteen years.
{¶ 8} Appellant then appealed. Pursuant to an opinion filed inState v. Nelson (Sept. 27, 2001), Tusc. App. No. 2001 AP 02 0016,
{¶ 9} Subsequently, on May 23, 2006, appellant filed a Complaint for Declaratory Judgment against appellee pursuant to R.C.
{¶ 10} On June 5, 2006, appellee filed a Motion for Judgment on the Pleadings, arguing that appellant had failed to file his complaint within the one year statute of limitations for false imprisonment contained in R.C.
{¶ 11} Pursuant to a Judgment Entry filed on October 4, 2006, the trial court granted appellee's Motion for Judgment on the Pleadings. The trial court, in its entry, found that, pursuant to R.C.
{¶ 12} Appellant now raises the following assignments of error on appeal:
{¶ 13} "I. THE TRIAL COURT ERRED IN RULING THAT APPELLANT'S CAUSE OF ACTION ACCRUED ON JUNE 10, 1998, THE DATE UPON WHICH APPELLANT WAS FIRST RELEASED ON BOND PENDING RE-TRIAL ON CHARGES ARISING FROM THE SAME INCIDENT AS THAT FOR WHICH HE HAD BEEN IMPRISONED, *6
BECAUSE THE STATE WAS NOT FINISHED PROSECUTING APPELLANT, THEREBY LEAVING THE FOURTH ELEMENT OF THE TORT OF WRONGFUL IMPRISONMENT AS SPECIFIED IN BOTH THE FORMER AND CURRENT VERSIONS OF R.C. §
{¶ 14} "II. THE TRIAL COURT ERRED IN RULING THAT APPELLANT'S CAUSE OF ACTION ACCRUED ON JUNE 10, 1998, BECAUSE THE LAW AT THAT TIME WOULD HAVE REQUIRED APPELLANT TO PROVE THAT THE OFFENSE OF WHICH HE WAS CONVICTED, INCLUDING ALL LESSER-INCLUDED OFFENSES, EITHER WAS NOT COMMITTED BY HIM OR WAS NOT COMMITTED BY ANY PERSON, WHICH THING PLAINTIFF HAS NEVER ALLEGED HE CAN DO, THEREBY LEAVING THE FIFTH ELEMENT OF THE TORT OF WRONGFUL IMPRISONMENT AS REQUIRED UNDER THE FORMER VERSION OF R.C. §
{¶ 16} The Supreme Court of Ohio, in Walden v. State (1989),
{¶ 17} In turn, R.C.
{¶ 18} Appellant, in the case sub judice, filed a complaint against appellee, seeking a declaration that he was a wrongfully imprisoned individual within the meaning *8
of R.C.
{¶ 19} Appellee, in the case sub judice, cites to R.C.
{¶ 20} However, appellant's action in this matter is not an action against the state permitted by R.C. Sections
{¶ 21} R.C.
{¶ 22} Based on the foregoing, we concur with the trial court that the statute of limitations for filing a wrongful imprisonment claim under R.C.
{¶ 23} The next issue for determination is when appellant's cause of action against appellee accrued.
{¶ 24} R.C.
{¶ 25} "(1) The individual was charged with a violation of a section of the Revised Code by an indictment or information prior to, or on or after, September 24, 1986, and the violation charged was an aggravated felony or felony.
{¶ 26} "(2) The individual was found guilty of, but did not plead guilty to, the particular charge or a lesser-included offense by the court or jury involved, and the offense of which the individual was found guilty was an aggravated felony or felony.
{¶ 27} "(3) The individual was sentenced to an indefinite or definite term of imprisonment in a state correctional institution for the offense of which the individual was found guilty. *10
{¶ 28} "(4) The individual's conviction was vacated or was dismissed, or reversed on appeal, the prosecuting attorney in the case cannot or will not seek any further appeal of right or upon leave of court, and no criminal proceeding is pending, can be brought, or will be brought by any prosecuting attorney, city director of law, village solicitor, or other chief legal officer of a municipal corporation against the individual for any act associated with that conviction.
{¶ 29} "(5) Subsequent to sentencing and during or subsequent to imprisonment, an error in procedure resulted in the individual's release, or it was determined by a court of common pleas that the offense of which the individual was found guilty, including all lesser-included offenses, either was not committed by the individual or was not committed by any person." (Emphasis added).
{¶ 30} We note that subsection (5), cited above, was amended, effective April 9, 2003, to allow a person, such as appellant, who could not establish his or her actual innocence, but who could establish that an error in procedure resulted in his or her release to file a complaint against the State of Ohio seeking a declaration that he or she had been wrongfully imprisoned. Prior to such time, only individuals who could establish their actual innocence could file such a complaint. Thus, prior to the amendment, appellant would not have had a cause of action because he alleges an error in procedure resulted in his release. The amendment to R.C.
{¶ 31} The trial court, in its October 4, 2006 Judgment Entry, held that appellant's cause of action accrued upon his release from confinement on June 10, 1998. On such *11 date, appellant was released from confinement on a recognizance bond. We, however, disagree.
{¶ 32} As is stated above, for appellant to be classified a "wrongfully imprisoned individual", each and every one of the elements set forth in R.C.
{¶ 33} As noted by appellant in the case sub judice, "the issue of the lawfulness of Appellant's prosecution and imprisonment was not finally terminated in Appellant's favor until the appeal period expired following the final reversal of Appellant's third conviction and sentencing on September 27, 2001." Pursuant to an opinion filed on such date, this Court found that appellant's speedy trial rights had been violated and remanded the matter to the trial court with instructions to dismiss the charge against appellant for failure to comply with R.C.
{¶ 34} Based on the foregoing, we find that appellant's cause of action accrued after September 27, 2001.3 Appellant had six years from such time within which to file his complaint seeking a declaratory judgment that he was a wrongfully imprisoned individual within the meaning of R.C.
{¶ 35} Appellant's first assignment of error is, therefore sustained.
{¶ 37} Accordingly, the judgment of the Tuscarawas County Court of Common Pleas is reversed and this matter is remanded to the trial court for further proceedings.
*13By: Edwards, J., Hoffman, P.J., and Wise, J. concur
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Tuscarawas County Court of Common Pleas is reversed and this matter is remanded to the trial court for further proceedings. Costs assessed to appellee.