Opinion
No. 79-1038
Decided May 21, 1980.
Habeas corpus — Proceedings erroneously conducted, when — New enactment not considered.
APPEAL from the Court of Appeals for Allen County.
This is an appeal by petitioner-appellant, Anthony Roden, from the dismissal of his petition for a writ of habeas corpus by the Court of Appeals for Allen County. Respondent-appellee, Ronald E. Hubbard, as Acting Superintendent of Lima State Hospital, has custody of appellant pursuant to the judgment of the Court of Common Pleas of Cuyahoga County, finding appellant not guilty by reason of insanity on charges of aggravated murder and felonious assault.
On May 16, 1979, Roden filed his petition for habeas corpus, essentially alleging that he had been restored to sanity and claiming that retention of custody by appellee was, therefore, improper.
The cause is now before this court upon an appeal as of right.
Mr. David A. Little, for appellant.
Mr. William J. Brown, attorney general, and Mr. David E. Stocker, for appellee.
The Court of Appeals proceeded pursuant to former R.C. 2945.39 and denied appellant's request for release. That statute was repealed and replaced, however, by the enactment of H.B. No. 565, effective November 1, 1978. Thus, the provisions of former R.C. 2945.39 were not in existence at the time appellant sought relief. Accordingly, the court should have looked to the new enactment for resolution of the cause. For this reason, the judgment of the Court of Appeals is reversed and this cause is remanded to that court for consideration under present statutory provisions.
Judgment reversed and cause remanded.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.