Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
R.C. 2929.20 -- Judicial release
State v. Triplett,
176 Ohio App. 3d 603,
2008-Ohio-397 – Notwithstanding State v. Foster,
a trial court granting judicial release to a person convicted of a first or
second degree felony must continue to make the findings required by
and (2). Though the court gave scrupulous thought as to whether judicial
release was appropriate, it failed to meet technical requirements. Also see
State v. Hunt, Franklin App. No. 04AP-1177,
Weiss, 180 Ohio App. 3d 509,
2009-Ohio-78 – For those convicted of first, second and
third degree felonies, jail time credit accrued prior to arrival
at the institution may be included when the defendant must wait
five years to apply for judicial release because the sentence is
more than five but less than ten years. Reference to delivery to
a state correctional institution applicable to those serving
shorter sentences is not repeated in
Sparks, 178 Ohio App. 3d 272,
2008-Ohio-4664 – Defendant serving an aggregate sentence of
twelve years for F-3‘s was granted judicial release, though he
did not qualify as an "eligible offender." Applying
State v. Cunningham, 113 Ohio St. 3d
2007-Ohio-1245 the court holds the state may not appeal as a
matter of right a modification sentence for an F-3, 4 or 5 that
is contrary to law. Dissent concludes the modified sentence was
"invalid" because ―the trial court lacked statutory and inherent
authority to make the modification." Concurring judge draws the
distinction that though unauthorized, the matter was within the
court‘s subject matter jurisdiction.
State v. Wiliams,
Franklin App. No. 10AP-55, November 18, 2010 memorandum decision
– A presentence investigation is not required before a defendant
may be granted judicial release. A PSI is required for community
control, but though similar conditions may be ordered as a part
of judicial release, judicial release involves a prison term and
thus falls outside the definition of community control.
State v. Cunningham,
113 Ohio St. 3d 108,
2007-Ohio-1245 -- The state may not appeal the modification of a sentence
granting judicial release for a third, fourth or fifth degree felony. The court
also heads off an attempt to appeal the modification as contrary to law by
finding the court did not abuse its discretion by permitting the defendant to
reinstate an initial timely motion for judicial release though a second motion
Darst, 170 Ohio App. 3d 482,
2007-Ohio-1151 -- Defendant was returned to prison upon
violation of judicial release. There is no statutory requirement
that a court granting judicial release expressly reserve the
right to reimpose the balance of the sentence, though doing so
might be the preferred practice. In any event, it was clear from
the record that the defendant was aware of this possibility.
State v. Peoples, 151 Ohio App. 3d 446,
2003-Ohio-151 -- (1) Eligibility for judicial release is to be determined by the
law in effect at the time sentence was imposed.
R.C. 1.58 does not bring the
benefit of changes in the law as it is limited to cases where the penalty has
not already been imposed. (2) The former version of
R.C. 2929.20 which failed to
allow those serving five year sentences to apply for judicial release, though
permitting judicial release for those serving longer sentences, violates equal
protection. Affirmed: State v. Peoples, 102 Ohio St. 3d 460,
2004-Ohio-3923. (3) When granting judicial release the court must make the
statutorily mandated findings.
State v. Smith, Montgomery App. No.
2004-Ohio-3573 -- The time for filing a motion for judicial release is
calculated based on the length of the sentence imposed by the court to which
application is made. It is not based on the aggregate sentence imposed by courts
in different counties. The controlling statutes use the term "sentencing court"
in the singular. This interpretation precludes a court in one county granting
judicial release on a sentence imposed by another.
State v. Woods (2001), 141 Ohio App. 3d
549 -- The denial of judicial release is not a final appealable order. Also see
State v. Ingram, Franklin App. No. 03AP-149,
2003-Ohio-5380; <State v.
Greene 2nd Dist. No. 02-CA-17,
2002-Ohio-2595>. Compare the dissenting
opinion in State v. Coffman 91 Ohio St. 3d 125, 2001-Ohio-296 and
State v. McConnell (2001), 143 Ohio App.
3d 219 -- Defendant was given concurrent prison terms and later granted judicial
release. Upon revocation she was given consecutive prison terms. (1) Court was
without authority to do so as granting judicial release suspended original
sentence, and was not the equivalent of an initial grant of community control.
(2) Fleeting inquiry whether an attorney was desired was insufficient compliance
with the Crim R. 32.3(B) and Crim. R. 44(C) requirement there be a written
waiver of counsel.
State v. Mann, Crawford App. No.
2004-Ohio-4703 -- Return to prison upon revocation of judicial release
is not the equivalent of imprisonment upon violation of community control. While
it is preferable to explicitly reserve the right to impose the balance of the
sentence when judicial release is granted, the failure to do so doesn't not bar
return. Nor must the court make findings in support of the sentence.
State v. Wiley, 148 Ohio App. 3d 82,
2002-Ohio-460 -- Defendant was given concurrent three year terms, then granted
judicial release. Upon violation he was given concurrent four year terms and
denied credit for time previously served. Reversed on both issues. Court could
give consecutive time for any new offense, but could not increase the sentence
previously imposed, then reduced by judicial release.
State v. Persons, Meigs App. No. 02CA6,
2003-Ohio-4213 -- Prosecutor, defense counsel and judge all mistakenly believed
a defendant given five years in consecutive sentences could be granted judicial
release after serving two years. In fact he had to serve four. Pleas were not
knowingly and voluntarily entered due to defense counsel's erroneous legal
advice. Reversed for ineffective assistance of counsel.
State v. Horch, 154 Ohio App. 3d 537,
2003-Ohio-5135 -- During plea colloquy defendant was mistakenly advised she
would be eligible for judicial release after serving 180 days of a five-year
sentence. In fact she had to serve four years. Reversed as plea was not entered
knowingly and intelligently.
State v. Jones, Lorain App. No.
2004-Ohio-3417 -- Court erroneously granted judicial release after
the defendant served three years of mandatory time on a firearm specification
and only seven months of the remaining five year sentence. Under the law
controlling at the time sentence was imposed, he must serve the entire five
years. R.C. 1.58 does not bring the benefit of amendment permitting application
after serving four years of a five-year sentence.
State v. Hoy, Union App. No. 14-04-13,
2005-Ohio-1093 -- ¶30: "Nowhere in
R.C. 2929.20(I) is the trial court given the
authority to modify an offender's judicial release merely because the offender
is confined in a prison. The trial court would be authorized to revoke an
offender's judicial release, based on a finding that the new offense violated
the conditions of his release. However, the trial court is given no authority to
modify or toll that offender's release."
State v. Strausbaugh (1997), 87 Ohio Misc.
2d 31 -- Defendant was sentenced to five years after shooting her boyfriend in
the leg. Prosecutor and boyfriend concurred in motion for judicial release filed
after serving 180 days, though
2929.20(B)(3) provides those serving between five
and ten years must wait five years before filing. Court finds equal protection
violation and orders release.
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