Opinion
No. 38250
Decided March 11, 1964.
Criminal procedure — Appeal — Conviction of sodomy — Referral, before sentence, to state facility for observation — Not final appealable order — Appeal must await imposition of sentence.
After a defendant's conviction of the crime of sodomy under Section 2905.44, Revised Code, and before sentence, his referral by a court of competent jurisdiction to an approved state facility for observation for a period of not more than 60 days as provided by Section 2947.25, Revised Code, is not a final appealable order but a procedural incident, and in accordance with Section 2953.05, Revised Code, any appeal must await and follow the imposition of sentence.
CERTIFIED by the Court of Appeals for Richland County.
The defendant, appellant herein, was indicted, tried and convicted in the Court of Common Pleas of Richland County for the felony of sodomy in violation of Section 2905.44, Revised Code. A finding of guilty was returned on February 4, 1963. Several days later, defendant appeared before the court and under the provisions of Section 2947.25, Revised Code, was referred to the Lima State Hospital for observation for a period of not more than 60 days. Thereupon, defendant filed a notice of appeal on questions of law from such order to the Court of Appeals. This was met by the state's motion to dismiss the appeal on the basis that the temporary referral to Lima is not a final appealable order. After hearing, the Court of Appeals sustained the motion upon authority of the case of State v. Wolfenberger, 106 Ohio App. 322, 154 N.E.2d 774, and the judges of the Court of Appeals for Richland County, finding the judgment rendered to be in conflict with the judgment of the Sixth District Court of Appeals in the case of State v. Theisen, 91 Ohio App. 489, 108 N.E.2d 854, certified the record to this court for review.
Mr. Rex Larson, prosecuting attorney, and Mr. William F. McKee, for appellee.
Mr. Harold E. Gibson, for appellant.
Section 2947.25, Revised Code, as now in force, recites:
" After conviction and before sentence, a trial court shall refer for examination all persons convicted under Section * * * 2905.44 of the Revised Code * * * to a state facility designated by the department [Department of Mental Hygiene and Correction]." (Emphasis supplied.)
In our opinion, such a temporary referral for examination is no more than a procedural incident and is not a final appealable order under the wording and intendment of the quoted statute.
Such conclusion is fortified by Section 2953.05, Revised Code, which provides:
"Appeal under Section 2953.04 of the Revised Code may be filed as a matter of right within thirty days after judgment and sentence * * *. After the expiration of the thirty-day period * * * such appeal may be taken only by leave of the court to which the appeal is taken. * * *" (Emphasis supplied.)
From the last-quoted section, it is even more plainly apparent that the sentence is the judgment from which an appeal lies. Here, there has been no "judgment and sentence," and there is no appealable order which the statutes recognize.
Any appeal must await the completion of the examination and the imposition of sentence. Otherwise, there would be the anomalous situation of two appeals, one from the temporary and incidental referral and, if that proved unsuccessful, another appeal from the sentence pronounced.
We think nothing of that sort is within the contemplation of the statutes, and, therefore, the judgment of the Court of Appeals herein dismissing the appeal is affirmed.
Judgment affirmed.
TAFT, C.J., O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.
MATTHIAS, J., not participating.