State v. MooreState v. Moore
On December 21, 1983, appellant, James Richard Moore, while armed with a loaded revolver, entered a Clermont County businеss estab *76 lishment, Mattress Warehouse. Moore took, at gunpoint, the cash register proceeds and personal property and money from six people who were present in the store, including the store’s manager.
On January 18, 1984, the Clermont County Grand Jury indicted Moore on seven counts of aggravated robbery contrary to and in violation of
Moore brings a timely appeal to this court.
Appellant’s sole assignment of error is as follows:
“The trial сourt erred to the substantial prejudice of the defendant-appellant in sentencing defendant to two conseсutive periods of actual incarceration, prior to the commencement of the serving of indefinite sentences, contrary to § 2929.71(B) of the Revised Code.”
“If an offender is convicted of, or pleads guilty to, two or more felonies and two or more specifications charging him with having a firearm on or about his person or under his control while committing the fеlonies, each of the three-year terms of actual incarceration imposed pursuant to this section shall bе served consecutively with, and prior to the life sentences or indefinite terms of imprisonment imposed pursuant to section 2907.02, 2907.12, 2929.02, or 2929.11 of the Revised Code, unless any of the felonies were committed as part of the same act or transaction. If any of the felonies were committed as part of the same act or transaction, only one three-year term of actual incarceration shall be imposed for those offenses, which three-year term shall be served сonsecutively with, and prior to, the life sentences or indefinite terms of imprisonment imposed pursuant to section 2907.02, 2907.12, 2929.02, or 2929.11 оf the Revised Code.” (Emphasis added.)
Moore argues that the trial court should have sentenced him to only one three-year term of actual incarceration instead of two three-year terms of actual incarceration sincе the robberies were part of the same transaction.
The term “same act or transaction” is not defined in the statute. However, “* * * the wоrd ‘transaction’ is sufficiently flexible to comprehend any number of criminal offenses so long as such offenses have a logical relationship and are committed within a continuous time sequence.” Fudge, supra, at 3.
In Fudge, the defendant was convicted of aggrаvated robbery and attempted murder. The defendant had forced the victim at gunpoint to turn over his money to the defendаnt and *77 then the defendant attempted to murder the victim. The court in Fudge, supra, at 4, held that the defendant could only be sentenced tо one three-year term of actual incarceration because:
“[Although] * * * the conduct of the defendant embrаced two readily identifiable crimes, * * * both stemmed from a common objective, and both developed from a single сriminal adventure. In other words, each of the acts or occurrences which took place during the episodе * * * was part and parcel of a single ‘transaction,’ and for this reason,Section 2929.71(B) allows for only one three-year term of actual incarceration.”
In the case at bar, the theft of the cash register proceeds and the manager’s personal property and money had a logical relationship, were committed within the same continuous time sequеnce, had a common objective and developed from a single criminal adventure. Therefore, the two felonies were part of the same transaction.
The state’s argument that the multiple count statute,
Wе conclude that, since under the facts and circumstances in the case at bar the two felonies were committеd as part of the same act or transaction, only one three-year term of actual incarceration is permissible.
The sole assignment of error is hereby sustained.
Accordingly, one of the two three-year terms of actual incarceration to which Moore was sentеnced must be vacated and set aside, but in all other respects, the judgment of the Court of Common Pleas of Clermont County will be affirmed.
Judgment accordingly.