741 N.E.2d 943 | Ohio Ct. App. | 2000
I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY ITS FAILURE TO PROVIDE NOTICE OR STATE A TERM OF PRISON SHOULD DEFENDANT VIOLATE THE CONDITIONS OF COMMUNITY CONTROL SANCTIONS AT THE ORIGINAL SENTENCING PURSUANT TO O.R.C. S2929.19 AND IN VIOLATION OF APPELLANT'S EQUAL RIGHTS PROTECTIONS UNDER THE UNITED STATES AND OHIO CONSTITUTIONS.
II. THE TRIAL COURT ERRED IN SENTENCING DEFENDANT TO ELEVEN MONTHS IN PRISON, AND ISSUING A $2000.00 FINE AS A RESULT OF A VIOLATION OF COMMUNITY CONTROL SANCTIONS.
III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ELECTED TO IMPOSE A PRISON TERM ON APPELLANT PURSUANT TO S2929.15.
IV. THE TRIAL COURT ERRED WHEN IT SENTENCED DEFENDANT TO ELEVEN MONTHS' IMPRISONMENT BECAUSE THE TRIAL COURT DID NOT FIND ON THE RECORD THAT THE SHORTEST PRISON TERM AVAILABLE WOULD DEMEAN THE SERIOUSNESS OF THE OFFENDER'S CONDUCT OR FAIL TO PROTECT SOCIETY FROM FUTURE MISCONDUCT OF THE OFFENDER PURSUANT TO S2929.14(B).
V. THE TRIAL COURT'S SENTENCE OF APPELLANT WAS AN ABUSE OF DISCRETION.
We find the trial court did not have the discretion to sentence appellant to prison for violation of his community control sanctions because the court never informed appellant of the potential prison term which could be imposed for such a violation. Therefore, we vacate the judgment entered on August 6, 1999 and remand for re-sentencing.
*573THE COURT FINDS THAT A COMMUNITY CONTROL SANCTION WILL ADEQUATELY PROTECT THE PUBLIC AND WILL NOT DEMEAN THE SERIOUSNESS OF THE OFFENSE. IT IS THEREFORE ORDERED THAT THE DEFENDANT IS SENTENCED TO 1 YEAR OF COMMUNITY CONTROL, UNDER THE SUPERVISION OF THE ADULT PROBATION DEPARTMENT.
DEFENDANT TO MAINTAIN VERIFIABLE EMPLOYMENT; RANDOM URINALYSIS; ONCE RESTITUTION IS PAID IN FULL DEFENDANT'S PROBATION WILL BE TERMINATED.
VIOLATION OF THE TERMS AND CONDITIONS MAY RESULT IN MORE RESTRICTIVE SANCTIONS, A PRISON TERM EXTENSIONS (SIC), AS PROVIDED BY LAW.
THE DEFENDANT IS ORDERED TO REPORT TO THE PROBATION DEPARTMENT, PAY RESTITUTION IN THE AMOUNT OF $330.OO TO CUYAHOGA COUNTY ENGINEERS OFFICE; PAY COURT COSTS AND STANDARD PROBATION FEE.
A capias was issued for the appellant on December 22, 1998. At a hearing held August 3, 1999, the trial court reported that the capias was issued because appellant had failed to report to the probation department since September 8, 1998. Appellant explained that he did not report to the probation department because he was attending college in San Francisco. He stated he was willing and able to pay restitution and the probation fee. In a judgment entered August 6, 1999, the court sentenced appellant to eleven months imprisonment at Lorain Correctional Institution and a $2000 fine. Appellant moved the court to reconsider this sentence, but the court overruled appellant's motion. This court granted appellant's motion for a stay of execution of his sentence pending appeal.
The second assignment of error asserts that the trial court erred by imposing a prison term on appellant because the court did not inform him at the original sentencing hearing of the specific prison term which could be imposed if he violated his community control sanctions. Appellant does not deny that he violated the terms of his community control sanctions. Under R.C.
The legislature's reference to R.C.
Ordinarily, we must presume the legislature means what it says; we cannot amend statutes to provide what we consider a more logical result. However, when the terms of the statute, as written, would never be applicable, and the simple substitution of one character would result in a term which would always be applicable, we must conclude that the statute contains an obviously typographical error, and we may correct the error and give effect to the obvious intent of the statute. Brim v. Rice (1969),
We do not lightly undertake to correct the express language of the legislature. We will only do so if the error is obvious and the correct result is also obvious. In this rare case, we find both such conditions. Therefore, we take the extraordinary step of correcting R.C.
The sentencing court informed appellant that a prison term could be imposed upon him if he violated community control sanctions. However, the court did not notify appellant of any specific prison term that could be imposed. Nor does the record show that appellant was ever informed of the potential prison terms applicable to this offense. Cf. State v. Miller (Dec. 30, 1999), Tuscarawas App. No. 1999 AP 02 0010, unreported. Under these circumstances, we find the court had no discretion under R.C.
Accordingly, we sustain the second assignment of error. This conclusion renders moot the remaining three assignments of error. We vacate the judgment entered on August 6, 1999 and remand for re-sentencing.
This cause is vacated and remanded to the lower court for further proceedings consistent with this opinion.
It is, therefore, considered that said appellant recover of said appellee its costs herein.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
ANN DYKE, A.J. and JAMES M. PORTER, J. Concur.
KENNETH A. ROCCO, JUDGE