State v. FranklinState v. Franklin
Lee D. Koogler, Hillsboro, Ohio, for the Appellant.
Fred J. Beery, Hillsboro City Law Director, Hillsboro, Ohio, for the Appellee.
Kline, P.J.:
{¶1} Carl Franklin appeals his resentencing for sexual imposition. On appeal, Franklin contends that the trial court erred when it ordered him to register as a Tier I sexually oriented offender as a condition of his community control. But after consideration, we find that the trial court was without jurisdiction to resentence Franklin. Accordingly, we vacate the resentencing judgment of the trial court and dismiss this appeal.
I.
{¶2} On November 3, 2005, Franklin was convicted of sexual imposition in violation of
{¶3} On January 22, 2009, the Hillsboro Municipal Court resentenced Franklin pursuant to
{¶4} Franklin appeals and assigns the following error for our review: “The Trial Court erred in resentencing Defendant-Appellant Carl Franklin pursuant to O.R.C. Section 2929.25 through a Journal Entry and setting as a condition of his resentencing, that as a condition of his community control, that Defendant-Appellant register as a Tier I Sex Offender pursuant to O.R.C. Section 2950.04.”
II.
{¶5} Before we consider Franklin‘s assignment of error, we first must establish whether the lower court had jurisdiction to resentence Franklin. At our request, both parties have filed briefs on this issue.
{¶6} The State argues that the original sentencing judgment was void because the judgment failed to conform to the mandatory sentencing requirements of
{¶7} Applying Simpkins to this case, if Franklin‘s sentence was void, then the trial court would have had jurisdiction to resentence him. However, the result of a void Franklin sentence under Simpkins is to totally resentence him, starting with a new sentencing hearing. Stated differently, a court cannot limit the new hearing to only consider the issue found to be in error. Here, the trial court did limit the new sentencing hearing. The court characterized the issue as merely procedural and only explained the obligations of a Tier I offender under S.B. 10. Thus, even if we assume Franklin‘s sentence was void, the trial court did not comport with Simpkins. See State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, at ¶16 (“The trial court must resentence the offender as if there had been no original sentence.“).
{¶8} Regardless of the trial court‘s failure to comport with Simpkins, we do not agree with the State that Franklin‘s sentence was void pursuant to Simpkins.
{¶9} In Simpkins, the omitted term in the sentence was in regard to post release control; this is properly a part of a criminal judgment. In the present case, the omitted term is in regard to notice for registration. We have previously concluded that S.B. 10 remains civil rather than criminal in nature. State v. Messer, Ross App. No. 08CA3050, 2009-Ohio-312, at ¶12. The omission of a civil remedial matter does not necessarily
{¶10} We distinguish this case from Simpkins because it concerns a civil matter, rather than a punitive criminal matter. We find that the trial court lacked jurisdiction to reconsider its own final judgment in this case. Therefore, we are without jurisdiction to consider an appeal from a void judgment. Napier v. Napier, Meigs App. No. 08CA9, 2009-Ohio-3111, at ¶7-8.
{¶11} Accordingly, we vacate the resentencing judgment of the trial court and dismiss the present appeal.
JUDGMENT VACATED AND APPEAL DISMISSED.
{¶12} I agree that the trial court did not have the authority to re-sentence Mr. Franklin. As the principal opinion indicates, the original sentence was not void – it was merely voidable. Because the State failed to appeal the voidable judgment, it has now become law of the case and cannot be revisited. However, rather than dismissing the appeal, I would sustain the assignment of error and remand with instructions to vacate the revised sentence.
{¶13} Finally, because I agree that Simpkins, supra, is distinguishable and does not apply, I do not consider whether the trial court followed its mandate.
It is ordered that the JUDGMENT BE VACATED and the APPEAL BE DISMISSED, and appellee pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hillsboro Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Harsha, J.: Concurs in Judgment Only with Opinion.
Abele, J.: Concurs in Judgment and Opinion.
For the Court
BY:
Roger L. Kline, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.