Summary
explaining that R.C. 2953.14 allows the state to appeal the denial of leave to appeal to this court
Summary of this case from State v. HendersonOpinion
No. 87-1760
Submitted August 19, 1988 —
Decided October 19, 1988.
Appellate procedure — Denial by court of appeals of state's leave to appeal under R.C. 2945.67 is appealable to Supreme Court — R.C. 2953.14.
APPEAL from the Court of Appeals for Cuyahoga County, No. 52669.
On December 3, 1985, Michael P. Foster pleaded no contest to both counts of a two-count indictment charging him with felonious assault (R.C. 2903.11) and felony child endangering (R.C. 2919.22[B]). Appellee, a judge of the Court of Common Pleas of Cuyahoga County, found Foster guilty on both counts. On January 10, 1986, appellee sentenced Foster to serve from three to fifteen years in the Ohio State Reformatory on the felonious assault conviction and suspended the sentence. On the child endangering conviction, appellee sentenced Foster to one year in the Ohio State Reformatory and ordered that sentence into execution.
On March 26, appellee overruled Foster's motion for shock probation.
In May 1986, the state pointed out to appellee that the suspension of the sentence on the felonious assault conviction was illegal in that the court had suspended the sentence without placing Foster on probation as required by R.C. 2929.51(A). On June 4, appellee ordered that Foster be returned from the state reformatory for further proceedings.
On June 24, appellee suspended Foster's sentence on the child endangering conviction on condition that he serve six months in the Cleveland House of Correction. Appellee also placed Foster on two years' probation on the felonious assault conviction, to begin on his release from the House of Correction.
Pursuant to R.C. 2945.67, the state moved for leave to appeal the court's action. The court of appeals overruled the motion. The state did not appeal further. Instead, it petitioned the court of appeals for a writ of mandamus to vacate appellee's June 24 order. The writ was denied.
The cause is now before this court upon an appeal as of right.
John T. Corrigan, prosecuting attorney, and Thomas J. Sammon, for appellant.
Thomas M. Shaughnessy, Walsh Doughten Co., L.P.A., and David L. Doughten, for appellee.
Appellant argues that, because he sought leave to appeal the suspension of sentence under R.C. 2945.67, and leave was denied, he had no further remedy at law.
However, appellant could have appealed the denial of leave to appeal to this court. R.C. 2953.14 allows the state to seek review of an adverse judgment of a court of appeals:
"Whenever a court superior to the trial court renders judgment adverse to the state in a criminal action or proceeding, the state * * * may institute an appeal to reverse such judgment in the next higher court. * * *"
Because appellant could have appealed under R.C. 2953.14, he had an adequate remedy at law. See State, ex rel. Zoller, v. Talbert (1980), 62 Ohio St.2d 329, 16 O.O. 3d 391, 405 N.E.2d 724; State, ex rel. Leis, v. Outcalt (1980), 62 Ohio St.2d 331, 16 O.O. 3d 392, 405 N.E.2d 725 (appeal is adequate remedy for claimed error in sentencing).
Mandamus does not lie herein and the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.