Judgment

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
David L. Strait and the Franklin County Public Defender Office
 

Criminal Rule 32(B) -- Judgment.

Formal Requirements - In General

State ex rel. Davis v. Cuyahoga County Court of Common Pleas, 127 Ohio St. 3d 29, 2010-Ohio-4728 – A sentencing entry must fully resolve counts on which there was a conviction. It need not reiterate disposition of counts resolved by dismissal, nolle prosequi or not guilty findings. Also see State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-3330.
 
State v. Pennington, 187 Ohio App. 3d 526, 2010-Ohio-2139 – In Dayton Municipal Court the defendant appeared before a magistrate, pled to theft, and was placed on probation. There was no entry signed by a judge adopting the magistrate’s recommendation. When the defendant was later alleged to be in violation of his probation he interposed this irregularity hoping to avoid serving the suspended sentence. The appellate court accepts his basic argument, but then turns it around to find this left the defendant without a final order from which to take an appeal. In addition, the denial of a motion to dismiss revocation proceedings was not a final order. It appears the prosecutor sought to remedy the situation after the defendant’s brief had been filed by having the administrative judge sign an order adopting all the magistrates’ recommendation from the week the defendant appeared in court. The order signed did not meet the requisites of a judgment entry set forth in Crim. R. 32(C). Nor did it meet the requirement of individualized consideration by the trial court judge assigned to each case.
 
In re Babbs, Franklin App, No. 03AP-1011, 2004-Ohio-583 -- Initial judgment entry in termination of parental rights proceedings did not dispose of the rights of an unidentified father and did not indicate in accordance with Civil Rule 54(B) that there was no reason for delay in disposing of the rights of some but not all parties. Thus, that entry was not a final appealable order, and a party not otherwise affected by a nunc pro tunc entry had standing to appeal from that order.
 
State v. Aliane, Franklin App. Nos. 02AP-948 and 986 -- Sentence reflected by judgment entry must be as pronounced in court. Error to add a restitution order. Also see State v. Culver, 160 Ohio App. 3d 172, 2005-Ohio-1359.
 
State v. Brock, Hamilton App. No. C-020819, 2003-Ohio-3199 -- Case was tried to a judge, who after some research sent a magistrate to the courtroom to announce the verdict. Entry was signed only by the magistrate. This was beyond the scope of a magistrate's authority. Appeal dismissed for want of a final appealable order.
 
State v. Chamberlain (1964), 177 Ohio St. 104 -- Final judgment in a criminal case means sentence. Also see Berman v. United States (1937), 302 U.S. 211.
 
State v. Henderson (1979), 58 Ohio St. 2d 171 -- A judgment of conviction requires both a guilty verdict and a sentence. Both must be present to constitute a prior theft offense conviction for enhancement purposes.
 
State v. Ginoccio (1987), 38 Ohio App. 3d 105 -- Judgment entry should contain: (1) the case number and caption; (2) a designation as a decision or judgment entry or both; (3) a clear pronouncement of the court's judgment including the plea, the verdict or findings, sentence and the court's rationale if the entry is combined with a decision or opinion; (4) the signature of the judge; and (5) a time stamp indicating filing with the clerk for journalization.
 
State v. Dickey (1991), 74 Ohio App. 3d 587 -- Judgment must explicitly state defendant has been found guilty to constitute a final appealable order.
 
State v. Brown (1989), 59 Ohio App. 3d 1 -- Judgment of trial court is not final unless a judgment entry disposes of each charge.
 
State v. Myers (1997), 119 Ohio App. 3d 642, 645 -- "Because a court speaks through its journal, it is imperative that the court's journal reflect the truth...All 'litigants have a clear legal right to have the proceedings they are involved in correctly journalized'...Therefore, making an incorrect journal entry is a clear abuse of discretion by the trial court."
 
State ex rel. White v. Junkin (1997), 80 Ohio St. 3d 335 -- A ruling written on a case file jacket and posted on a computerized court docket, but not entered in the journal is not a final judgment. Judge changed his mind about accepting plea to a reduced charge after the defendant had paid the fine and costs. Though outcome may be defensible in the context of a mandamus action, question whether it would be upheld in a conventional appeal if properly challenged as a violation of due process. See dissent.
 
Columbus v. McCreary (1981), 3 Ohio App. 3d 216 -- Scrawling on the face of a Municipal Court file pocket is not a judgment entry unless labelled as such or unequivocally intended to be a judgment. Also see Mesloh v. Home Furnace Co. (1942), 36 Ohio L. Abs. 531; Millies v. Millies (1976), 47 Ohio St. 2d 43, 1 Ohio Ops. 3d 26.

Formal Requirements - Crim. R. 32(C) Issues

State v. Baker, 119 Ohio App. 3d 197, 2008-Ohio-3330 – Judgment entry did not set forth the defendant‘s initial plea of not guilty. On motion of the prosecutor the Court of Appeals dismissed for want of a final appealable order. Criminal Rule 32(c) calls for the judgment entry to include the plea. Court decides the plea need not always be included and that a judgment entry of conviction must be a single document. Syllabus: "A judgment of conviction is a final appealable order under R.C. 2505.02 when it sets forth (1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk of court. (Crim. R. 32(C), explained.)"
 
State ex rel. DeWine v. Burge, 128 Ohio St. 3d 236, 2011-Ohio-235 – Judgment entry from 1994 did not conform with Crim. R. 32(C) because it failed to set forth the manner of conviction. The successor to the original trial court judge reviewed the record and vacated convictions. Attorney General granted a writ of prohibition directing acquittals be vacated and that an entry complying with Crim. R. 32(C) be put on. ¶18: “Consistent with the treatment of Crim. R. 32(C) errors as clerical mistakes that can be remedied by a nunc pro tunc entry, we have expressly held that the ‘remedy for a failure to comply with Crim. R. 32(C) is a revised sentencing entry rather than a new hearing” (citations omitted). Concurring opinion notes the issue remains whether new appellate rights arise from the new sentencing entry. Footnote indicates the issue is before the court in State v. Lester, Nos. 2010-1007 and 1372. Reconsideration denied: State v. Burge, 128 Ohio St. 3d 1230, 2011-Ohio-1755.
 
State v. Lester, 130 Ohio St. 3d 303, 2011-Ohio-5204 -- Some inmates successfully used the requirement in the Baker syllabus that “the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based” be included in the judgment entry to contend a judgment was void in order to get back into court to revive past claims, or to advance new claims which otherwise would have been barred by res judicata. Cf. State v. Anaya, 191 Ohio App. 3d 602, 2010-Ohio-6045. Lester probably puts an end to this practice by eliminating from the list of requisites for a final appealable order whether the conviction was the product of a guilty or no contest plea, or a guilty verdict following a bench or jury trial. According to ¶12, “Crim.R. 32(C) does not require a judgment entry of conviction to recite the manner of conviction as a matter of substance, but it does require the judgment entry of conviction to recite the manner of conviction as a matter of form.” The omission does not affect the finality of the judgment. Aggrieved parties may submit a motion to correct the judgment of conviction pursuant to Crim.R. 36.
 
State ex rel Culgan v. Medina County Court of Common Pleas, 119 Ohio St. 3d 535, 2008-Ohio-4609 – A sentencing entry that violates Crim. R. 32(C) renders that entry nonappealable. Judgment entry did not set forth the plea or the verdict or the court findings on which convictions were based as required by Crim. R. 32(C). Trial court denied motion for resentencing. Court of appeals denied writs of mandamus and procedendo. Reversed. Writs issued.
 
State v. Smith, 180 Ohio App. 3d 684, 2009-Ohio-335 – Defendants wanted to get back into court for resentencing in order to press a claim based on Kimbrough v. United States (2007), 552 U.S. 85 that the differential treatment of crack and powder cocaine in sentencing statutes is unjust. A previous effort based on Foster had been unsuccessful. This time they claimed their sentences were void according to State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197. Court distinguishes Simpkins on the basis that the defendant had already been through direct appeal and construes their motions as untimely motions for postconviction relief. Also see State v. Price, Wayne App. No. 07CA0025, 2008-Ohio-1774. Furthermore, the court is not receptive to a Kimbrough claim. Supreme Court declined jurisdiction.
 
State v. Mitchell, 187 Ohio App. 3d 315, 2010-Ohio-1766 – Following a no contest plea defendant appealed his sentence and lost. Based on State v. Baker defendant was resentenced, and again appealed his sentence. State moved to dismiss. Denied. Collateral estoppel cannot be applied when there is no final order. Parties cannot stipulate jurisdiction when it does not otherwise exist. Res judicata also applies only when there has been a valid final judgment. An entry that does not comply with Baker is void, not merely voidable.
 
State ex rel. Staffrey v. D’Apolito, 188 Ohio App. 3d 56, 2010-Ohio-2529 – Defendant convicted in 1996 filed a motion to withdraw his guilty plea and asking for resentencing. Basis was State v. Baker, as the judgment entry did not include the manner of conviction. When the trial court failed to rule after ten months relief was sought in mandamus and procedendo. ¶20: If a court believes it lacks jurisdiction to grant a motion, a litigant is entitled to the courtesy of an entry to that effect, so relief may be sought on appeal. ¶23: If a motion seeks a greater remedy than can be afforded, it does not bar providing what relief is appropriate. ¶26: The respondent’s claim no remedy was due makes it unnecessary to weigh whether ten months was an unreasonable delay. Writ granted in part.
 
State v. Anaya, 191 Ohio App. 3d 602, 2010-Ohio-6045 – The defendant filed a “Motion to Correct Status of a Void Sentencing Entry” premised on State v. Baker. The trial court put on a nunc pro tunc entry. Defendant appealed, returning to claims raised in an earlier appeal in an expanded manner. The Sixth District adhered to its decision in State v. Mitchell, 187 Ohio App. 3d 315, 2010-Ohio-1766 that the new entry was not merely a matter of correcting a clerical error, and, therefore, res judicata and collateral estoppel did not bar a return to the merits.

Formal Requirements - Postrelease Control

State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197 – Syllabus: “In cases in which a defendant is convicted of, or pleads guilty to, an offense for which postrelease control is required but not properly included in the sentence, the sentence is void, and the state is entitled to a new sentencing hearing to have postrelease control imposed upon the defendant unless the defendant has completed his sentence.” Also see State v. Bloomer, 122 Ohio St. 3d 200, 2009-Ohio-2462; State v. Jordan, 104 Ohio St. 3d 21, 2004-Ohio-6085.
 
State v. Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250 – Syllabus: “When a defendant is convicted or pleads guilty to one or more offenses and postrelease control is not properly included in a sentence for a particular offense, the sentence for that offense is void. The offender is entitled to a new sentencing hearing for that particular offense.
 
State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238 – The Court returns again to discussion of void versus voidable sentences that goes back to State v, Beasley, (1984), 14 Ohio St. 3d 74, and continued through cases concerning correction of the omission of postrelease control from sentences. Recognizing (somewhat) the difficulties that have resulted, the court interposes the concept of limited voidness, premised on failure to follow statutory mandates in passing sentence, as opposed to the broader compass of voidness based on a lack of jurisdiction. Syllabus: “(1) A sentence that does not include the statutorily mandated term of postrelease control is void, is not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack. (2) The new sentencing hearing to which an offender is entitled under State v. Bezak is limited to proper imposition of postrelease control. (State v. Bezak, 114 Ohio St. 3d 94, 2007-Ohio-3250, 868 N.E. 2d 961, syllabus, modified.) (3) Although the doctrine of res judicata does not preclude review of a void sentence, res judicata still applies to other aspects of the merits of a conviction, including the determination of guilt and the lawful elements of the ensuing sentence. (4) The scope of an appeal from a resentencing hearing in which a mandatory term of postrelease control is imposed is limited to issues arising at the resentencing hearing.” See dissent. Affirms State v. Fischer, 181 Ohio App. 3d 758, 2009-Ohio-1491.
 
State v. Minkner, 194 Ohio App. 3d 694, 2011-Ohio-3106 -- Based on State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238 all that was before the trial court at a resentencing hearing to remedy the failure to include postrelease control in the sentence was the addition of PRC. The defendant initiated an appeal to address other claims. The court of appeals sua sponte applies Fischer and nullifies the reduced sentence the trial court had elected to impose.
 
State v. Gonzalez, 195 Ohio App. 3d 262, 2011-Ohio-4219 – Defendant hoped to raise a merger claim in a postconviction action premised on the failure to include postrelease control in the original sentence. Issue cannot be reached.
 
State v. Singleton, 124 Ohio St. 3d 173, 2009-Ohio-6434 – Syllabus: “(1) For criminal sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose postrelease control, trial courts shall conduct a de novo sentencing hearing in accordance with decisions of the Supreme Court of Ohio. (2) For criminal sentences imposed on and after July 11, 2006, in which a trial court failed to properly impose postrelease control, trial courts shall apply the procedures set forth in R.C. 2929.191.” H.B. 137 purported to allowed correction without de novo resentencing in all cases where PRC had been omitted. Court reviews its line of void judgment cases, then at ¶26 states, “H.B. 137 cannot retrospectively alter the character of sentencing entries issued prior to its effective date that were nullities at their inception, in order to render them valid judgments subject to correction.” However, it may apply prospectively. Five-two split on ¶1 of the syllabus (merely voidable, thus no jeopardy violation). Four-three split on ¶2 (void is void). See State v. Sawyer, 124 Ohio St. 3d 547, 2010-Ohio-923 for what this may mean.
 
State v. Harris, 190 Ohio App. 3d 417, 2010-Ohio-5374 – Defendant appealed denial of his motions for resentencing in two cases. In one case the judgment was void because the court failed to include a mandatory driver’s license suspension. This case is remanded for resentencing. In the second case the sentence didn’t include either the mandatory fine or license suspension. This too would make it void, but because the court spread its judgment over two entries, there was not a final appealable order. Opinion cites State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-3330, ¶17, for the proposition only one document can constitute a final appealable order. As to what limited remedy the defendant may receive at the resentencing hearing see State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238.
 
State v. Mullen, 191 Ohio App. 3d 788, 2011-Ohio-37 -- Defendant pled no contest and received consecutive sentences. Subsequently he sought to withdraw his pleas. The motion was denied but the court conducted a resentencing hearing because postrelease control had not been addressed in court at the first sentencing hearing in 2008. An appeal was taken from the resentencing hearing, which the Third District addressed in the merits of claims that could have been advances in a timely appeal following the initial sentencing. Note that the appeal came from what was treated as a de novo resentencing hearing. According to State v. Singleton, 124 Ohio St. 3d 173, 2009-Ohio-6434, based on the 2008 date of the original sentencing hearing, the court could probably have gotten by through following R.C. 2929.191. Opinion was released shortly after State v. Fischer. Case was not taken to the Supreme Court.
 
State v. Cedeno, 192 Ohio App. 3d 738, 2011-Ohio-674 -- Based on State v. Jordan, 104 Ohio St. 3d 21, 2004-Ohio-6085 the defendant was allowed to reopen his appeal pursuant to App. R. 26(A) because post release control had not properly been addressed at the time he was sentenced. The First District revisited the merits of the assignments of error advanced in the defendant’s 1998 appeal. Opinion was released after State v. Fischer. The defendant lost on the merits and the case was not taken o the Supreme Court.

Nunc Pro Tunc Entries

Last updated 3/1/2016
 
State v. Roehrig, 3rd Dist. Defiance No.4-15-15, 2015-Ohio-5187
 
Trial court lacked authority to modify its original sentencing entry as a "nunc pro tunc" to impose a more restrictive sanction after journalization of the criminal conviction and sentence. The record reflected that there was no correction of a clerical error to be made and the original judgment entry contained an accurate recitation of the sentence announced on the record.
 
State v. Annable, 194 Ohio App. 3d 336, 2011-Ohio-2029, ¶19-25 – Entry mistakenly stated dismissal was with prejudice. Nun pro tunc entry corrected this “clerical error.” Circumstances did not call for dismissal with prejudice. No double jeopardy violation found in subsequent prosecution.
 
State v. Miller, 127 Ohio App. 3d 407, 2010-Ohio-5705 – Restitution was discussed at the plea hearing before a visiting judge, but was not ordered orally or by journal entry at the time the visiting judge passed sentence. The prosecutor sought a hearing on restitution. Instead the initially assigned trial court judge reviewed a transcript of the plea hearing, concluded restitution was a part of the deal and put on an amended judgment entry. Reversed. ¶14: “…(A) trial court lacks the authority to reconsider its own valid final judgment in a criminal case, with two exceptions: (1) when a void sentence has been imposed and (2) when the judgment contains a clerical error.” Omission of restitution is not a “clerical error.” ¶16: “…(T)he determination of restitution entails a substantive legal decision or judgment and is not merely a mechanical part of a judgment.” Syllabus: “A court may not use a nunc pro tunc entry to impose a sanction that the court did not impose as a part of the sentence.
 
State v. Jama, 189 Ohio App. 3d 687, 2010-Ohio-4739 – Following a bench trial involving khat, the initial judgment entry was mistaken as to the name of the offense and the degree. Defense counsel moved for a nunc pro tunc entry, which the court put on. Prosecutor appealed. Court concludes that the issue requires leave to appeal, which is granted. Reversed, as corrections of this magnitude are beyond the bounds of a nun pro tunc entry.
 
State v. Yeaples, 180 Ohio App. 3d 720, 2009-Ohio-184 – Just because an entry is labeled as a nunc pro tunc entry doesn‘t mean that it is. Defendant‘s initial appeal was dismissed because the judgment entry didn‘t state the offense. Corrective entry did so and was labeled as a nunc pro tunc entry. Nunc pro tunc entries do not extend the time for filing the notice of appeal. Prosecutor claimed second notice of appeal was untimely. Because the first entry was ineffective, it is the second entry that constitutes the judgment from which the appeal is taken.
 
State ex rel. Mayer v. Henson, 97 Ohio St. 3d 276, 2002-Ohio-6323 -- In 2001 a Common Pleas Court judge put on a nunc pro tunc entry altering the sentence he imposed in 1983 to net the defendant the amount of time he intended be served instead of the actual time to be served at the discretion of the Adult Parole Authority. Prosecutor's complaint in mandamus and prohibition was dismissed by the court of appeals. Supreme Court reverses, strongly indicating that the judge did not have jurisdiction to alter his prior order.
 
State v. Brown (2000), 136 Ohio App. 3d 816, 820 -- "While courts possess authority to correct errors in judgment entries so that the record speaks the truth, nun pro tunc entries are limited in proper use to reflecting what the court actually decided, not what the court might or should have decided or what the court intended to decide."
 
State v. Taylor (1997), 78 Ohio St. 3d 15, 23 -- Court was permitted to use a nunc pro tunc entry to correct an error in an almost 20 year old judgment entry which identified the offense as attempted murder instead of murder.
 
State v. Parsons (1997), 122 Ohio App. 3d 284 -- Original judgment entry mistakenly said jail sentence for a misdemeanor was suspended. Nunc pro tunc corrected entry did not violate double jeopardy.
 
State v. Hawk (1992), 81 Ohio App. 3d 296, 300 -- A nunc pro tunc order cannot be used to supply omitted action, or to indicate what the court might or should have decided, or what the trial court intended to decide. Also see State v. Greulich (1988), 66 Ohio App. 3d 22, 25; Webb v. W. Reserve Bond & Share Co. (1926), 115 Ohio St. 247.
 
McKay v. McKay (1985), 24 Ohio App. 3d 74, 75: "The purpose of a nunc pro tunc order is to have the judgment of the court reflect its true action. The power to enter a judgment nunc pro tunc is restricted to placing upon the record evidence of judicial action which has actually been taken. *** It does not extend beyond the power to make the journal entry speak the truth ***, and can be exercised only to supply omissions in the exercise of functions which are merely clerical ***. It is not made to show what the court might or should have decided, or intended to decide, but what it actually did decide." Adopted and followed, State v. Pocius (1995), 104 Ohio App. 3d 18, 21.

Other Issues

State v. Fain, 188 Ohio App. 3d 531, 2010-Ohio-2455 – Improperly imposed three-year license suspension was contrary to law, meriting reopening appeal and remanding for correction, but does not render the original sentence void.
 
State v. Smith, 180 Ohio St. 3d 684, 2009-Ohio-335 – Defendants wanted to get back into court for resentencing in order to press a claim based on Kimbrough v. United States (2007), 552 U.S. 85 that the differential treatment of crack and powder cocaine in sentencing statutes is unjust. A previous effort based on Foster had been unsuccessful. This time they claimed their sentences were void according to State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197. Court distinguishes Simpkins on the basis that the defendant had already been through direct appeal and construes their motions as untimely motions for postconviction relief. Also see State v. Price, Wayne App. No. 07CA0025, 2008-Ohio-1774. Furthermore, the court is not receptive to a Kimbrough claim.
 
Ohio Div. of Wildlife v. Kendrick, 180 Ohio App. 3d 662, 2009-Ohio-380 – When the defendant was sentenced in 1993 for 35 hunting-related offenses the court permanently revoked his right to obtain a hunting or fishing license, though at the time such penalty was not provided by statute. Fifteen years later he applied to have that portion of his sentence set aside. Ordinarily such a defect would not render the judgment voidable but not void, but applying State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197, the court is compelled to find the 1993 sentence is void.
 
In re K.K., 179 Ohio App. 3d 220, 2008-Ohio-5772 – Parents entered into an agreed judgment regarding custody of their child, each being sworn and stating their agreement. Mother later sought relief from judgment pursuant to Civ.R. 60(B) maintaining due to medication she had no recollection of her court appearance. This was supported by an affidavit from her treating psychiatrist indicating this was consistent with the side effects of her medication. Court erred in denying the motion without a hearing. ¶66: "A judgment may be predicated upon the agreement of the parties, but an agreed judgment depends, for its efficacy, upon the capacity of the parties to enter into the agreement."
 
State v. Tate, 179 Ohio App. 3d 135, 2008-Ohio-5820 – State appealed trial court ruling on a motion to suppress statements and lost. Subsequently the state sought to have the trial court vacate its suppression order and lost. In the majority‘s view the refusal to vacate may not be appealed. Dissent believed a Rule 60(B) motion, via Crim. R. 57, was appropriate and might be appealable by leave of court, but would deny leave to appeal in the circumstances of this case.
 
State v. Evans, 161 Ohio App. 3d 24, 2005-Ohio-2337 -- A court may modify a sentence to community control before the defendant has commenced serving a prison term. Following an unsuccessful appeal, the presentence investigation was changed to recommend community control. The judge modified the sentence. The prosecutor's appeal was unsuccessful.
 
In re Hlavsa (2000), 139 Ohio App. 3d 871 -- A juvenile court judge granted permanent custody to a child welfare agency, but was suspended from practice before the order was journalized. Order was void. Order was not saved by journalization by administrative judge acting as the court's ex officio clerk.
 
Cleveland v. Abraitis (2001), 146 Ohio App. 3d 306, 307 -- "A motion for reconsideration is not provided for in the Rules of Criminal Procedure and is therefore a nullity and does not suspend the time for filing a notice of appeal."
 
State v. McKnight, 107 Ohio St. 3d 101, 2005-Ohio-6046, ¶42-57 -- In response to the prosecutor's motion for reconsideration, the trial court reinstated dismissed death penalty specifications. Such action is upheld with no reference to the lack of authority for reconsideration motions within the criminal rules.
 
State v. Lehrfield, Hamilton App. No. 030390, 2004-Ohio-2277 -- A motion unequivocally invoking Civil Rule 60(B) may not be recast and reviewed as a motion for postconviction relief. 60(B) relief can afford criminal defendants relief from judgment. However such relief is not available when a remedy could have been sought through direct appeal.
 
State v. Scruggs, Franklin App. No. 02AP-621, 2003-Ohio-2019 -- Without deciding whether Civil Rule 60(B) motions may be entertained in criminal case via the procedure not otherwise specified language of Criminal Rule 57, court notes such claims have been considered in the past and goes on to find no abuse of discretion in overruling motion. Also see State v. Wooden, Franklin App. No. 02AP-473, 2002-Ohio-7363, ¶ 8; State v. Wells (March 30, 1993), Franklin App. No. 92AP-1462; State v. Hasenmeir (March 18, 1994), Erie App. No. E-93-33; State v. Riggs (October 4, 1993), Meigs App. No. 503.
 
In re D.H., Cuyahoga App. Nos. 82515, 82551, 82552, 82606 and 82607, 2003-Ohio-4818 -- Failure to previously specify grounds for relief under Civil Rule 60(B) is fatal to support agency's efforts to appeal trial court's adverse ruling on the motions.
 
State v. Plassman, Fulton App. No. F-03-017, 2004-Ohio-279 -- Civil Rule 60(B) relief from judgment is available in criminal cases, but only when the defendant may not pursue other avenues of relief such as breach of contract, declaratory judgment, habeas corpus and postconviction.
 
State v. Bell, Franklin App. No. 02AP-1282, 2004-Ohio-5256 -- Double jeopardy violation found where judgment entry was filed and court later added a restitution order. At sentencing the judge indicated the victim would be heard from, but the entry did not reflect the issue of restitution remained open.
 
State v. Walker, 161 Ohio App. 3d 745, 2005-Ohio-3026 -- In implementing a negotiated plea the court nolled one too many charges. The judge believed having done so he could not "reactivate the indictment." Without legal analysis this is said to be a correctable mistake.
 
Cleveland Heights v. Richardson (1983), 9 Ohio App. 3d 152 -- The Criminal Rules do not authorize "Motions for Reconsideration" at the trial court level. Also see Pitts v. Department of Transportation (1981), 67 Ohio St. 2d 378 (No provision for reconsideration in Civil Rules.)
 
State v. Butler (1974), 44 Ohio App. 2d 177 -- Opinion offers convoluted discussion of the need to formalize initial sentence by judgment before modification to greater sentence after defendant had threatened judge.
 
State v. Garrison (4th Cir. 1980), 623 F. 2d 330 -- Void or illegal sentence may be corrected without violating the Double Jeopardy Clause, even though an increase may result, but may not be modified to the extent it is not void or illegal. Also see Bozza v. United States (1947), 330 U.S. 160; State v. Vaughan (1983), 10 Ohio App. 3d 314.
 
United States v. DiFrancisco (1981), 449 U.S. 117 -- Prosecution appeal of sentence does not violate Double Jeopardy Clause.
 
State v. Blake (1977), 53 Ohio St. 2d 101 -- Death of defendant while appeal is pending voids the entire proceeding, including decision of the appeal, the original conviction and collection of fine and costs.
 
State v. Kinnemore (1972), 34 Ohio App. 2d 39 -- Pursuant to R.C. 2945.79(D), an appellate court may modify a verdict if the evidence shows the defendant was guilty only of a lesser included offense of the crime for which he was convicted. Also see State v. Butler (1967), 11 Ohio St. 2d 23, 36; Ohio Constitution, Article IV, Sec. 2(B)(2)(f) - Supreme Court: Article IV, Section 3(B)(1)(f) and (2).
 
State v. Addison (1987), 40 Ohio App. 3d 7 -- Once a valid sentence has been executed, it may not be modified except as provided by the General Assembly. A felony sentence is executed when the defendant is delivered to the penal institution and may be modified only by granting shock or super shock probation. Also see State v. Kraguljac (1988), 39 Ohio App. 3d 167; Columbus v. Messer (1982), 7 Ohio App. 3d 266; Lee v. State (1877), 32 Ohio St. 113; Santo v. State (1910), 17 Ohio C.C.(N.S.) 110, 32 Ohio C.D. 50; Minnick v. State (1929), 7 O.L.Abs. 301.
 
State v. Ballard (1991), 77 Ohio App. 3d 595 -- Double jeopardy violation found where court sentenced defendant to concurrent misdemeanor terms, under mistaken belief it was required to do so, then resentenced her to consecutive terms. Original sentence had not been reduced to writing, but the defendant had commenced serving it.
 
State v. Blankenship (1996), 111 Ohio App. 3d 198 -- Court granted husband a new trial when coroner's testimony at wife's second trial indicated a broader time period during which fatal injury might have been incurred. Though motion fell beyond the 120 day time limit, and entry did not make a specific finding that the defendant was unavoidably prevented from making discovery during that period, failure to set forth such a finding made judgment voidable rather than void. This defeated the prosecutor's collateral attack upon a judgment which it had failed to appeal.
 
State v. Warbington (1998), 129 Ohio App. 3d 568 -- Nolle as to one count was not set forth in judgment entry due to clerical error. Remanded for correction.
 
In re Buffington (1993), 89 Ohio App. 3d 814 -- Contempt proceedings may not be used to enforce payment of court costs.
 
State v. Snyder (1952), 157 Ohio St. 15 -- A judgment in a civil action is not admissible in a criminal trial to establish facts essential to proof of the offense charged. Also see State v. Black (1991), 75 Ohio App. 3d 667 applying the same rule to the outcome of administrative proceedings. Also see State v. Harding (1992), 81 Ohio App. 3d 619; State v. Nelms (October 6, 1981), Franklin Co. App. No. 81AP-339, unreported (1981 Opinions 3060).
 

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