State v. Aspell

214 N.E.2d 834 | Ohio Ct. App. | 1966

Appellant has moved "for an order to set bond during pendency of an appeal by the Plaintiff-Appellee to the Supreme Court of Ohio." Appellee has requested a stay order.

This case is an appeal from a felony conviction. The court has found that the evidence was insufficient. See State v. Aspell (1966), 5 Ohio App.2d 44. No final entry has been filed. Under our decision, the appropriate entry is one reversing the conviction, vacating the sentence, and ordering appellant's discharge forthwith. See Section 2953.13, Revised Code. It is apparent that such an order renders any suspension of sentence, and release on bail, meaningless.

We are unable to discover any statute bearing upon a stay by this court of its own order of discharge pending an appeal to the Supreme Court. In our opinion, the proper disposition of this case is for the court to order appellant's discharge. The appellee, state of Ohio, must obtain a stay, if any, from the Supreme Court. If such a stay should be granted, and the sentence thereby reinstated, appellant can then apply to that court under Section 2953.10, Revised Code, for a suspension of sentence and for bail. See Section 2953.11, Revised Code.

The motion is overruled.

Motion overruled.

TROOP, J., concurs.

BRYANT, P. J., dissents.