State v. Boswell, (Ohio 2009)
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Motion to dismiss
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Motion to dismiss
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[Cite as State v. Boswell, 2009-Ohio-3135.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. Patricia A. Delaney, J. -vs-
JERRY M. BOSWELL Case No. 2009CA0024
Defendant-Appellant O P I N I O N
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2007CR0856
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: June 25, 2009
APPEARANCES: For Plaintiff-Appellee For Defendant-Appel ant
KIRSTEN L. PSCHOLKA-GARTNER DALE M. MUSILLI 38 South Park Street 105 Sturges Avenue Mansfield, OH 44902 Mansfield, OH
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Richland County, Case No. 2009CA0024 2
Farmer P.J.
On November 7, 2007, the Richland County Grand Jury indicted appellant, Jerry Boswell, on one count of aggravated burglary in violation of R.C. 2911.11. A jury trial commenced on March 17, 2008. The jury found appellant guilty as charged. By sentencing entry filed March 18, 2008, the trial court sentenced appellant to five years in prison.
On June 11, 2008, appellant filed a notice of appeal of the March 18, 2008 sentencing entry (Case No. 08-CA-54). On February 11, 2009, the trial court filed an amended sentencing entry to comply with State v. Baker, 119 Ohio St.3d 197, 2008- Ohio-3330.
On February 12, 2009, this court dismissed the appeal for lack of a final appealable order because the March 18, 2008 sentencing entry did not comply with Baker.
On February 27, 2009, appellant filed a notice of appeal of the February 11, 2009 amended sentencing entry (Case No. 09-CA-24). This matter is now before this court for consideration. Assignment of error is as fol ows: I
"THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS." I
A review of the procedural aspects of this case is warranted.
By sentencing entry filed March 18, 2008, the trial court sentenced appellant to five years in prison. On June 11, 2008, appellant filed a notice of appeal
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Richland County, Case No. 2009CA0024 3
(Case No. 08-CA-54). On February 11, 2009, the trial court filed an amended sentencing entry to comply with Baker, supra. While we applaud the trial court for taking the initiative to comply with Baker, the trial court did not have jurisdiction to file the amended sentencing entry as the case was already before this court via appellant's June 11, 2008 appeal. State ex rel. Special Prosecutors v. Judges, Court of Common Pleas (1978), 55 Ohio St.2d 94. The trial court did not have jurisdiction until February 12, 2009 when this court dismissed the appeal.
As per this court's February 12, 2009 judgment entry dismissing the appeal, the March 18, 2008 is not a final appealable order, and as we find herein, the February 11, 2009 amended sentencing entry is void for lack of jurisdiction. Therefore, there is no final appealable order before this court.
The appeal is dismissed.
By Farmer, P.J.
Gwin, J. and Delaney, J. concur.
s/SHEILA G. FARMER
____________________
s/W.
SCOTT GWIN
____________________
s/PATRICIA A.
DELANEY
____________________
JUDGES
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Richland County, Case No. 2009CA0024 4
SGF/db
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Richland County, Case No. 2009CA0024 5
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
: Plaintiff-Appellee :
: -vs- :
JUDGMENT ENTRY
: JERRY M. BOSWELL :
: Defendant-Appellant :
CASE NO. 2009CA0024
For the reasons stated in our accompanying Memorandum-Opinion, this appeal is dismissed.
s/SHEILA G. FARMER
____________________
s/W.
SCOTT GWIN
____________________
s/PATRICIA A.
DELANEY
____________________
JUDGES
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