STATE OF OHIO v. GIOVANNI MANOCCHIO
No. 98473
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 6, 2012
2012-Ohio-5720
Stewart, P.J., Cooney, J., and Keough, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-435289
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Diane Smilanick
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
ATTORNEY FOR APPELLEE
John D. Mizanin
Harvey B. Bruner Co., LPA
The Hoyt Block Building
700 W. St. Clair Avenue, No. 110
Cleveland, OH 44113
{¶1} In May 2003, defendant-appellee Giovanni Manocchio pleaded guilty to driving while under the influence. It appears that this was his fourth DUI offense, so he pleaded guilty to a third degree felony violation of
{¶2} Although it is unclear from the record, it appears that the court imposed Manocchio‘s license suspension under
{¶3} A license suspension is not necessarily a complete bar to all driving during the term of suspension.
{¶4} The state does not argue on appeal that the court abused its discretion by granting Manocchio limited driving privileges, nor does it contest the purpose for granting the limited privileges. The state‘s sole argument is that the court was barred from granting driving privileges because the statutory minimum of 15 years had not elapsed since the suspension began.
{¶5}
{¶6} The state‘s argument assumes that the court‘s decision to grant limited driving privileges constituted a “modification” of the license suspension. This assumption is based on language in State v. Neace, 3d Dist. No. 10-06-04, 2006-Ohio-3072, stating that limited driving privileges constitute an “alteration” of the original suspension and is thus a “modification” of the original suspension. Id. at ¶ 7.
{¶7} Respectfully, we do not believe that Neace and a similar decision from this court, State v. Bahr, 8th Dist. No. 91667, 2009-Ohio-141, control the outcome in this case because they did not differentiate and give effect to various terms used by the General Assembly in defining the scope of license suspensions.
{¶8} The court is allowed to “suspend” or “terminate” a license suspension. See
{¶9}
{¶10} Our conclusion that driving privileges are different in kind than modifications of license suspensions is reinforced by the express language of
{¶12} We therefore hold that the 15-year time period set forth in
{¶13} Judgment affirmed.
It is ordered that appellee recover of appellant his 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS;
COLLEEN CONWAY COONEY, J., DISSENTS WITH SEPARATE OPINION
STATE OF OHIO v. GIOVANNI MANOCCHIO
No. 98473
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT
December 6, 2012
{¶14} I respectfully dissent. I would reverse the trial court‘s judgment on two grounds: it fails to specify an acceptable purpose for granting privileges under
{¶15}
Except as provided in division (F) of this section, a person whose driver‘s or commercial driver‘s license has been suspended for life under a class one suspension or as otherwise provided by law or has been suspended for a period in excess of fifteen years under a class two suspension may file a motion with the sentencing court for modification or termination of the suspension. The person filing the motion shall demonstrate all of the following:
(1) At least fifteen years have elapsed since the suspension began.
{¶16} Thus, under
(A) Unless expressly prohibited by section 2919.22, section 4510.13, or any other section of the Revised Code, a court may grant limited driving
privileges for any purpose described in division (A)(1), (2), or (3) of this section during any suspension imposed by the court. In granting the privileges, the court shall specify the purposes, times, and places of the privileges and may impose any other reasonable conditions on the person‘s driving of a motor vehicle. The privileges shall be for any of the following limited purposes:
(1) Occupational, educational, vocational, or medical purposes;
(2) Taking the driver‘s or commercial driver‘s license examination;
(3) Attending court-ordered treatment.
{¶17} In a closely analogous case, this court held:
[T]he trial court does have the authority to grant limited driving privileges as long as
R.C. 2919.22 ,4510.13 or any other section of the Revised Code does not prohibit it.R.C. 4510.54 prohibits the trial court from granting limited driving privileges for licenses suspended for life or for more than 15 years unless the requirements set forth in the statute are met. The first requirement is that “at least fifteen years have elapsed since the suspension began.” In the instant case, less than three years had elapsed. Thus, pursuant toR.C. 4510.54 the trial court was without authority to modify the license suspension prior to the elapse of fifteen years.
State v. Bahr, 8th Dist. No. 91667, 2009-Ohio-141, ¶ 8, citing State v. Neace, 3d Dist. No. 10-06-04, 2006-Ohio-3072; State v. Redman, 163 Ohio App.3d 686, 2005-Ohio-5474, 839 N.E.2d 1001 (12th Dist.).
{¶18} I would follow the precedent set forth in Bahr and reverse. The court had no discretion to modify Manocchio‘s driver‘s license suspension because it had not been at least 15 years since the suspension began. After 15 years, the court would have discretion to consider this modification. Because he was told he could not drive during his lifetime, I would view driving privileges as a modification of his lifetime suspension. And the statute clearly requires that the court specify the purposes, times, and places of any
{¶19} Therefore, I would reverse the judgment and vacate the granting of limited driving privileges.