Opinion
No. 88-1803
Submitted November 21, 1989 —
Decided December 13, 1989.
Appellate procedure — Supreme Court jurisdiction — Certified conflict case — Dismissal of appeal when Supreme Court finds no conflict exists.
CERTIFIED by the Court of Appeals for Hamilton County, No. C-870465.
Arthur M. Ney, Jr., prosecuting attorney, L. Susan Laker and David L. Prem, for appellant.
H. Fred Hoefle, for appellee.
This cause came before this court upon the certification of the court of appeals that its judgment conflicted with the judgment of the Court of Appeals for the Fifth District in State v. Howell (1981), 5 Ohio App.3d 92, 5 OBR 206, 449 N.E.2d 523, upon the following question:
"* * * [W]hether a judgment may be reversed and the cause remanded when a trial court errs in granting a motion to amend the indictment to less than bulk amount under R.C. 2925.03(A)(1), where the defendant plead [ sic] no contest to a charge of aggravated trafficking, and the evidence shows possession of more than bulk amount."
We find that the judgments of the
Courts of appeals do not conflict on the certified question. Accordingly, the appeal is dismissed. State v. Palider (1987), 33 Ohio St.3d 68, 514 N.E.2d 873; Cook v. Mayfield (1988), 37 Ohio St.3d 44, 523 N.E.2d 502; Hays v. St. Elizabeth Hosp. Medical Ctr. (1988), 38 Ohio St.3d 60, 526 N.E.2d 307.
SWEENEY, HOLMES, DOUGLAS, WRIGHT and RESNICK, JJ., concur.
MOYER, C.J., and H. BROWN, J., dissent.
I would retain jurisdiction and affirm the judgment of the court of appeals.
H. BROWN, J., concurs in the foregoing dissenting opinion.