Opinion
Case No. CT2011-0059
06-11-2012
STATE OF OHIO Plaintiff-Appellee v. DAVID T. DICKS Defendant-Appellant
For Plaintiff-Appellee RONALD L. WELCH Assistant Prosecuting Attorney Zanesville, Ohio 43701 For Defendant-Appellant FREDERICK A. SEALOVER Zanesville, Ohio 43702-2910
JUDGES:
Hon. W. Scott Gwin, P.J.
Hon. William B. , J.
Hon. John W. Wise, J.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2011-0112
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: June 11, 2012
APPEARANCES:
For Plaintiff-Appellee
RONALD L. WELCH
Assistant Prosecuting Attorney
Zanesville, Ohio 43701
For Defendant-Appellant
FREDERICK A. SEALOVER
Zanesville, Ohio 43702-2910
Hoffman , J.
{¶1} Defendant-appellant David T. Dicks appeals the October 4, 2011 Judgment Entry entered by the Muskingum County Court of Common Pleas which granted the Plaintiff-appellee state of Ohio's Motion to Amend the Indictment.
STATEMENT OF THE CASE
A rendition of the facts is unnecessary for our disposition of this appeal.
{¶2} Appellant was indicted on 20 counts of gross sexual imposition, violations of R.C. 2907.05(A)(4), all involving the same victim. The case proceeded to trial by jury.
{¶3} At the close of the state's case, Appellant moved for acquittal pursuant to Crim. R. 29, arguing although the evidence may have been sufficient to support a certain nature of the charged offense, it was not sufficient to support the nature of the offense as charged in the Indictment.
{¶4} In response, the state moved to amend the Indictment to include additional language which comported to the evidence adduced at trial and denied Appellant's motion for acquittal. Appellant then requested the jury be discharged pursuant to Crim. R. 7D. Via Judgment Entry filed October 4, 2011, that request was granted and the jury was ordered dismissed without prejudice with a new trial to be scheduled.
{¶5} It is from that judgment entry Appellant prosecutes this appeal, assigning as error:
{¶6} "I. THE TRIAL COURT ERRED IN PERMITTING THE STATE OF OHIO TO AMEND ITS INDICTMENT AND DENYING THE DEFENDANT'S MOTION FOR ACQUITTAL FOLLOWING THE CONCLUSION OF THE STATE OF OHIO'S CASE IN CHIEF AT TRIAL."
{¶7} Because Appellant is awaiting a new trial and has yet to be found guilty and/or sentenced, we find no final appealable order exists under R.C. 2505.02. As such, this Court is without jurisdiction and orders Appellant's appeal dismissed. By: Hoffman, J. Gwin, P.J. and Wise, J. concur
__________________
HON. WILLIAM B. HOFFMAN
__________________
HON. W. SCOTT GWIN
__________________
HON. JOHN W. WISE
STATE OF OHIO Plaintiff-Appellee
v.
DAVID T. DICKS Defendant-Appellant
JUDGMENT ENTRY
Case No. CT2011-0059
For the reason stated in our accompanying Opinion, this appeal is ordered dismissed. Costs assessed to Appellant.
__________________
HON. WILLIAM B. HOFFMAN
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HON. W. SCOTT GWIN
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HON. JOHN W. WISE