No. 96-2160 | Ohio | May 20, 1998
Dissenting Opinion
dissenting. I respectfully dissent. The issue underlying this case is whether R.C. 2903.11(A)(2) felonious assault may be considered a lesser included offense of attempted murder. A review of appellate court opinions demonstrates that the appellate jurisdictions have reached conflicting conclusions on this issue. See, e.g., State v. Hall (May 17, 1996), Sandusky App. No. 5-95-032, unreported, 1996 WL 256610; State v. Hammers (Feb. 28, 1996), Medina App. No. 2469-M, unreported, 1996 WL 84616; State v. Konoff (Nov. 1, 1991), Ottawa App. No. 90-OT-036, unreported, 1991 WL 224991; State v. Mabry (Nov. 1, 1984), Cuyahoga App. No. 47821, unreported, 1984 WL 3553. Moreover, if one is to accept the majority’s interpretation of the appellate judges’ separate opinions in State v. Williams (1998), 81 Ohio St.3d 1262, 693 N.E.2d 282, there is also a schism within the Fifth Appellate District on the issue. Compare State v. Nelson (Aug. 6, 1996), Tuscarawas App. No. 95AP070051, unreported, 1996 WL 488879, with State v. Williams (Sept. 23, 1996), Stark App. No. 95-CA-0258, unreported, 1996 WL 570956.
I believe that we should settle this issue by adopting Judge Hoffman’s well-reasoned majority opinion in Nelson, which concludes that R.C. 2903.11(A)(2) felonious assault is not a lesser included offense of attempted murder. By dismissing this case as having been improvidently allowed, the majority allows the judgment in Nelson to stand. For the benefit of the bar, I would go further by adopting the opinion as setting forth the proper standard of law in Ohio.
Lead Opinion
The cause is dismissed, sua sponte, as having been improvidently allowed.