Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
LIEU OF CONVICTION
R.C. 2951.041 -- Treatment in lieu of
R.C. 2951.04 -- Conditional probation
of drug dependent person.
State v. Shoaf (2000), 140 Ohio App. 3d 75
-- When treatment proves a failure, a defendant granted treatment in lieu of
conviction may not be placed on community control, and must be sent to prison.
Dissent points out this is an improper interpretation of
R.C. 2951.041, which
was passed in 1976, before community control replaced probation in felony cases.
Under the former sentencing statutes probation rested on the suspension of a
prison sentence, while community control does not include a suspended sentence.
State v. Gadd (1990), 66 Ohio App. 3d 278
-- It is an abuse of discretion to deny an application for treatment in lieu of
conviction on the basis that the court believes rehabilitation may be achieved
at lower cost through the court's own probation department.
State, ex rel Taylor, v. Glasser (1977),
50 Ohio St. 2d 165 -- If a not guilty plea has been entered before the request
for treatment in lieu of conviction is made, the case must proceed to trial
before there may be further consideration of the request.
State v. Lampkin (1982), 3 Ohio App. 3d
341 -- Hearing on request for treatment in lieu of conviction is mandatory when
request is made before plea is entered.
State v. Ramey (1988), 39 Ohio App. 3d 169
-- Alcohol is not a "drug" for purposes of eligibility for treatment in lieu of
conviction. Also see State v. Siler (1977), 6 Ohio Ops. 3d 368. Also see
State v. Radich (1992), 84 Ohio App. 3d 429; State v. Pena (1994), 93
Ohio App. 3d 367.
State v. Baker (1998), 131 Ohio App. 3d
507 -- A court may grant treatment in lieu of conviction in an OMVI prosecution
premised on both drugs and alcohol.
State v. Fortado (1996), 108 Ohio App. 3d
706 -- Defendant who had successfully completed treatment in lieu of conviction,
and had charges dismissed pursuant to
R.C. 2951.041(H), had not been convicted
and was immediately eligible for expungement pursuant to
There was no need to wait the three years prescribed under
R.C. 2953.32(A)(1) if
there has been a conviction.
State v. Chalender (1994), 99 Ohio App. 3d
4 -- Denial of a motion for treatment in lieu of conviction is not a final
appealable order. Appeal lies following conviction.
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