Opinion
No. 8029
Decided March 1, 1966.
Appeal — Criminal conviction reversed — Grounds entitling defendant to discharge — Appropriate journal entry — Stay of execution order must be obtained from Supreme Court.
1. Where a conviction is reversed on appeal on grounds which entitle the appellant to discharge, the appropriate entry of the Court of Appeals is one reversing the conviction, vacating the sentence, and ordering the appellant's discharge forthwith.
2. Where the appropriate entry reversing a criminal conviction will discharge the appellant, any stay of execution of such order must be otained by the state from the Supreme Court. If that court grants the stay, appellant must then apply to that court for a suspension of sentence and for bail.
ON MOTION to set bond: Court of Appeals for Franklin County.
Mr. C. Howard Johnson, prosecuting attorney, and Mr. James A. Pearson, for appellee.
Mr. Joseph H. Hans, for appellant.
Appellant has moved "for an order to set bond during pendency of an appeal by the Plaintiff-Appellee to the Supreme Court of Ohio." Appellee has requested a stay order.
This case is an appeal from a felony conviction. The court has found that the evidence was insufficient. See State v. Aspell (1966), 5 Ohio App.2d 44. No final entry has been filed. Under our decision, the appropriate entry is one reversing the conviction, vacating the sentence, and ordering appellant's discharge forthwith. See Section 2953.13, Revised Code. It is apparent that such an order renders any suspension of sentence, and release on bail, meaningless.
We are unable to discover any statute bearing upon a stay by this court of its own order of discharge pending an appeal to the Supreme Court. In our opinion, the proper disposition of this case is for the court to order appellant's discharge. The appellee, state of Ohio, must obtain a stay, if any, from the Supreme Court. If such a stay should be granted, and the sentence thereby reinstated, appellant can then apply to that court under Section 2953.10, Revised Code, for a suspension of sentence and for bail. See Section 2953.11, Revised Code.
The motion is overruled.
Motion overruled.
TROOP, J., concurs.
BRYANT, P. J., dissents.