State v. Burton, 83AP-363

83AP-363 | Ohio Ct. App. | Oct 13, 1983

This is an appeal by defendant from a conviction and sentence in the Court of Common Pleas of Franklin County for one count of grand theft in violation of R.C. 2913.02.

The value of the property involved was alleged to be in excess of $150. Defendant was sentenced to a term of from six months to five years at the Ohio Reformatory for women, which sentence was suspended and defendant was placed on probation for a period of three years, fined $200, plus costs, and ordered to make full restitution, and to perform eighty hours of community service to be arranged by the probation department. It is from this sentence that defendant brings this appeal setting forth the following single assignment of error:

"Changes in the theft statute effective after appellant's arrest but before she was sentenced, entitled her to be sentenced as for a misdemeanor."

Defendant argues that since she pleaded guilty and was sentenced following the effective date of the amended statute, R.C. 1.58¹ requires that defendant receive the benefit of the lesser sentence provided for in the amended statute. The state agrees with defendant's argument that the new value provisions for theft became effective on January 5, 1983 and that R.C. 1.58 would appear to indicate that defendant should have been sentenced under the statute as amended; therefore, the case should be remanded for resentencing of defendant for a misdemeanor. We find that R.C. 1.58 requires sentencing under R.C. 2913.02, as amended. Defendant's single assignment of error is sustained, and the case is remanded to the Court of Common Pleas of Franklin County for resentencing.

Case remanded for resentencing.

MOYER and NORRIS, JJ., concur.

¹ R.C. 1.58 provides in part:

"(B) If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended."