Opinion
No. 71-587
Decided May 3, 1972.
Criminal procedure — Appeal — Notice filed after sentence pronounced — Before formal journal entry — Not prematurely filed.
APPEAL from the Court of Appeals for Allen County.
On May 20, 1971, a jury in the Court of Common Pleas of Allen County found appellant guilty of violating R.C. 2903.11 and 2905.34. Immediately, upon the return of the verdict, the court proceeded on the same day to pronounce sentence and judgment.
On May 25, 1971, a document entitled "Journal Entry" was entered on the records of the trial court reciting, among other details of this indictment and trial, the foregoing events of May 20th, and that the defendant had been granted leave until May 24, 1971, to pay the fines imposed upon him as and for his sentence and the judgment against him for costs.
Meanwhile, on May 24, 1971, appellant filed his notice of appeal to the Court of Appeals from his conviction and sentence. The Court of Appeals dismissed the appeal on the ground that it was prematurely filed.
Mr. Lawrence Huffman, prosecuting attorney, for appellee.
Mr. Ted Iorio, for appellant.
Had the foregoing events occurred after July 1, 1971, when App. R. 4(B) became effective, the present controversy would not have arisen. However, appellant contends that the rule is nonetheless applicable because appellee did not move to dismiss the appeal until July 6, 1971. We find it unnecessary to resolve that contention.
App. R. 4(B) (Appeals in criminal cases):
". . . A notice of appeal filed after the announcement of a decision, sentence or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof. . . ."
Unlike the former procedure in civil matters, wherein all judgments and orders must be entered upon the journal (see R.C. 2323.22, repealed, effective July 1, 1971, and Civ. R. 58), neither the present statutes (R.C. 2947.05 and 2947.07 ) nor the proposed Criminal Rules (see Proposed Crim. R. 32 [XLV Ohio Bar, No. 13, March 27, 1972, pages 443, 444]) contain language vitiating the conclusion that the pronouncement of a sentence in open court, upon conviction, is then and there an act of the court which needs no formalization by a journal entry before an appeal may be perfected therefrom.
R.C. 2947.05:
"Before sentence is pronounced, the defendant must be informed by the court of the verdict of the jury, or the finding of the court, and asked whether he has anything to say as to why judgment should not be pronounced against him."
R.C. 2947.07:
"If a convicted defendant does not show sufficient cause as to why judgment should not be pronounced, the court shall pronounce the judgment."
Accordingly, the judgment of the Court of Appeals dismissing the appeal therein is reversed and the cause is remanded to that court for further proceedings according to law.
Judgment reversed.
O'NEILL, C.J., SCHNEIDER, HERBERT, CORRIGAN, STERN, LEACH and BROWN, JJ., concur.