499 N.E.2d 344 | Ohio Ct. App. | 1985
This is an appeal from the Court of Common Pleas of Trumbull County.
The defendant, Charles J. Fisher, was charged with aggravated robbery in violation of R.C.
The defendant waived his right to be indicted by the grand jury and entered a plea of guilty by way of information to robbery.
The guilty plea was accepted by the trial court and a pre-sentence investigation was ordered. Defendant was sentenced to the Ohio State Reformatory for the indefinite period of three to fifteen years. The trial court ruled, at the sentencing hearing, that probation of sentence was precluded in the instant case due to the finding in the pre-sentence investigation that a firearm was involved in the incident.
Defendant disputed the fact that he had previously been in jail on a criminal offense, but admitted to having the gun *198 during the robbery. Judge Nader gave the defendant the opportunity to withdraw his guilty plea. Defendant declined to withdraw his plea and was thus sentenced.
Defendant timely filed his notice of appeal on September 20, 1984.
This assignment of error is without merit.
R.C.
"(F) An offender shall not be placed on probation or otherwise have his sentence of imprisonment suspended pursuant to division (D)(2) or (4) of section
"* * *
"(3) The offense involved was not a violation of section
In the case at bar, defendant entered a plea of guilty to an information charging one count of robbery in violation of R.C.
A term of actual incarceration was imposed upon the defendant due to the fact that the pre-sentence investigation disclosed that a firearm was involved in the commission of the crime charged. The trial court used this information regarding a firearm to deny the defendant the possibility of probation as a matter of law.
The trial court had no discretion to consider probation because R.C.
This assignment of error is without merit.
R.C.
R.C.
The defendant argues that R.C.
Defendant claimed that he was not properly sentenced for a firearm specification.
In State v. Moore (1985),
"The parties herein agree that appellant was unarmed throughout the commission of the instant offense. Appellant contends that, as such, he is not subject to enhancement of his sentence pursuant to R.C.
"At that time, R.C.
In the instant case, the defendant pled to a violation of R.C.
We find, therefore, that defendant was not subject to the enhancement pursuant to R.C.
The judgment of the trial court is affirmed.
Judgment affirmed.
FORD and COOK, JJ., concur.