499 N.E.2d 402 | Ohio Ct. App. | 1986
This cause came on to be heard upon an appeal from the Court of Common Pleas of Clermont County.
This case, although brought to this court in terms of a sentencing issue, actually presents a procedural question concerning the propriety of the appeal itself. For the reasons set forth below, we hold that the matter is improperly before us and we therefore decline to rule on the specific assignments of error and dismiss the action sua sponte.
The case at bar emanated from an indictment issued by the Clermont County Grand Jury on March 23, 1983, charging defendant-appellant, Richard L. Shinkle, with one count of aggravated vehicular homicide, a fourth degree felony, in violation of R.C.
On March 30, 1984, appellant appeared in the Clermont County Court of Common Pleas with counsel and pleaded guilty to the charge of aggravated vehicular homicide. In addition to a fine and permanent revocation of his driving privileges, appellant was given an indefinite prison term of not less than two and not more than five years. Appellant was delivered to the custody of the Columbus Correctional Facility to begin execution of his sentence. No direct appeal was pursued with regard to the guilty plea and subsequent sentence.
Over a year later, on April 24, 1985, appellant filed what was simply styled a "motion" with the trial court. The motion requested the trial court "to vacate the sentence imposed upon Defendant on March 30, 1984 and to modify Defendant's sentence." Appellant argued that the trial court had failed to afford appellant the opportunity to elect whether to be sentenced under the law in effect at the time the crime was committed or under the law in effect at the time sentence was imposed.2 Appellant further *55 claimed that since the indictment lacked an appropriate specification, appellant was entitled to a definite prison term of six months, one year, or eighteen months.3
The state responded with a motion to dismiss, claiming under R.C.
Of primary concern in this case is the status of the trial court's order denying appellant's motion to "vacate and correct" his sentence. Before any consideration can be given to the merits of appellant's assigned errors, we must first determine whether the appealed order is in fact a final and appealable order subject to review by this court. As is the case in a civil proceeding, a criminal case requires a judgment or final order before there is a basis for appeal, i.e., an order which amounts to a disposition of the cause and which affects a substantial right in an action which in effect determines the action and prevents a judgment. State, ex rel. Leis, v. Outcalt (1982),
The appeal currently under consideration concerns the court's order denying appellant's "motion." The state argued that appellant's motion was one to modify sentence and was therefore precluded from consideration by the trial court because appellant was already in the custody of a correctional institution and had begun serving his sentence. Appellant's position is that the motion was one to vacate and correct or reimpose the sentence. The issue of semantics is of little importance in determining the motion's true identity since it is not the name or character of an order which determines its appealability, *56 but rather the order's effect upon the action. Eberhardt, supra. In determining if the order is final and appealable, it is not enough to merely say that the order is interlocutory; rather, the order must be examined to determine if it affects substantial rights and in effect determines the action. Eberhardt, supra.
Appellant claims that he was denied his right to elect and choose the law under which he was to be sentenced. Without passing judgment on whether this right was in fact violated, we would state that the right is undeniably a substantial right. However, if in fact appellant's right of election was violated, it was violated when he was sentenced on March 30, 1984, not when the court denied his motion on June 7, 1985. The sentencing election, if available to appellant, could be exercised only prior to the trial court's imposition of sentence, not after appellant had served a year of his sentence. Accordingly, we hold that the order denying appellant's motion did not affect a substantial right and determine the action. Furthermore, we do not consider this to be a "special proceeding" in a case following judgment. To so hold would open the doors to endless motions by criminal defendants continually contesting and challenging their sentences months and even years after execution of the sentences had begun. The constant clamour for appellate review raised by such motions could effectively stymie and impede the execution and enforcement of criminal sentences and judgments.
To accept appellant's additional argument that the court's denial of the motion acts as a nunc pro tunc entry relating back to the original sentencing order would not properly place the matter before an appellate court. The general rule is that a nuncpro tunc entry cannot operate to extend the period within which an appeal may be prosecuted, especially where the appeal grows out of the original order rather than the nunc pro tunc entry. See Perfection Stove Co. v. Scherer (1929),
Accordingly, we hold that the trial court's decision to deny appellant's "motion" is not a final appealable order subject to review by this court. This decision, however, does not preclude appellant from any and all review of his sentence. There are appropriate avenues of post-conviction relief available to appellant, including the application for a delayed appeal pursuant to App. R. 5. However, the case as it now appears before us in its present procedural form lacks the status of a final appealable order and is not subject to our review. We therefore dismiss the action sua sponte without prejudice to appellant.
Appeal dismissed.
JONES, P.J., HENDRICKSON and NICHOLS, JJ., concur.
NICHOLS, J., of the Court of Common Pleas of Madison County, sitting by assignment in the Twelfth Appellate District.
"(A) No person, while operating * * * a motor vehicle * * * shall recklessly cause the death of another."
"* * * Persons convicted or sentenced on or after July 1, 1983, for an offense that is a felony of the third or fourth degree and that was committed on or after January 1, 1974, and before July 1, 1983, shall be notified by the court sufficiently in advance of sentencing that they may choose to be sentenced pursuant to either the law in effect at the time of the commission of the offense or the law in effect at the time of sentencing. * * *"
"(D) Whoever is convicted of or pleads guilty to a felony of the third or fourth degree and did not, during the commission of that offense, cause physical harm to any person nor make an actual threat of physical harm to any person with a deadly weapon * * * and who has not previously been convicted of an offense of violence shall be imprisoned for a definite term * * *. The terms of imprisonment shall be imposed as follows:
"* * *
"(2) For a felony of the fourth degree, the term shall be six months, one year, or eighteen months."